Top 100 environmental blog

I'm happy to report that Feedspot has named Environment, Law, and History one of the top 100 environmental blogs. Thanks to all of you - the readers, writers, commenters, mentioners, and so on - who made it happen!

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Water rights II - Systems of property rights in water

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(Continuing the series on water rights - the first installment was here .) Property in water takes a great variety of forms. Many countries' laws state that all water is the property of the public or the state ( Trelease, 1957 ; Cumyn, 2007 ; Sun, 2009 ; Schorr, 2013 ). Most civil law countries, following Roman law, distinguish between public and private waters. The "absolute dominion" rule of the common law, still in force in some American states, treats groundwater as an unowned resource, open to capture by any overlying landowner ( Dellapenna, 201 3). The riparian rights system of the common law views water sources as the common property of all landowners abutting the source ( Getzler, 2004 ). The system of prior appropriation applied in the western United States recognizes private property rights to amounts of flows of water. In Australia ( Davis, 1968 ) and western Canada the Crown owns the water and distributes it to users through a permit system ( Percy, 2005 ). ...
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Tort law, regulation and river pollution

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One of the prices those of us who publish chapters in edited collections pay is that our writing often does not get the exposure it would were it published in a journal. So I'd like to bring special notice to a piece by Michael Lobban, "Tort Law, Regulation and River Pollution: The Rivers Pollution Prevention Act and its Implementation, 1876-1951", published in Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change , edited by TT Arvind and Jenny Steele (Hart, 2013). From the introduction: By 1850, the massive urbanisation and industrialisation which Britain experienced over the previous century had generated unprecedented problems of pollution. The mid-century laissez-faire state, with its small central government and fragmented local regulatory bodies, was largely unprepared for these problems, and environmental protection was left in the hands of private litigants - usually wealthy landowners - invoking the common law. However, reform at bot...
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Historical Analysis in Environmental Law V: What is to be done? Police, public health, statutory nuisances, planning and zoning, labor law, and literature

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In the last post in this series  I suggested looking at the histories of commons regulation, forest law, and 'police' to better understand the historical roots of modern environmental law. Before moving on to note several other relevant areas of historical law, I would like to note that while critics ( most recently Markus Dubber ) have impugned police for its broad discretion and patriarchal foundations, these very elements were powerful enablers of environmental regulation in the public interest. Moreover, the opposing tradition that Dubber identifies—the Enlightenment ideal of the 'rule of law'—has often used the liberal ideal of private property to frustrate public-minded environmental regulation. In any case, police regulations, with their wide remit and geographic dispersion , are natural places to look for sources of modern environmental law. Noga Morag-Levine has indeed made the connection between early modern 'science of police' and later regulation of ...
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