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Dan Farber recently blogged at Legal Planet on what has changed in environmental law since the first edition of his casebook, published in 1981: Some changes were less than expected. Given Reagan’s election, it seemed likely that we would see some major statutory modifications if not repeals. But that didn’t happen. In fact, looking at that book, I realize that there have been only a handful of significant statutory changes. CERCLA, the Superfund law, wasn’t passed until just after the election by the lame duck Congress. Congress passed minor statutory revisions in the 1980s and a big amendment to the Clean Air Act in 1990 that mostly strengthened it. It also passed a statute just a couple of years ago helpfully revamping the Toxic Substances Control Act. Even in 1980, it was clear to us that the original version was a botched job.  With those exceptions, the statutes now are pretty much the same as they were back then. Even though the statutes are the same, there have been a massive n...

Richard Frank recently posted at Legal Planet on the 50th anniversary of the enactment of the US Wild and Scenic Rivers Act. Some excerpts: 1968 was an especially tumultuous year in modern American history.  The nation endured the assassinations of both Martin Luther King, Jr. and Robert F. Kennedy; then-President Lyndon Johnson announced he would not seek reelection due to growing public dissatisfaction with the government’s conduct of the Vietnam War; and protests and riots consumed Chicago, Detroit, Washington, D.C. and many other American cities. So it was in stark contrast and a most welcome development when in 1968 Congress passed, and (in October of that year) a lame duck President Johnson signed into law the Wild and Scenic Rivers Act ....  The Act represented a major political and conservation achievement 50 years ago.  It remains an important cornerstone of America’s conservation efforts a half century later. ***** Under the WSRA, rivers are classified as wild,...

Andy Seal at US Intellectual History Blog posted an interesting piece on William Cronon's extremely influential  Nature's Metropolis  (1991) earlier this week. It's a rich piece, covering a lot of topics, but it's his discussion of Cronon and commodification that I thought particularly relevant for those of us interested in the intersection of environment, law, and history. Some excerpts: [Jeffrey] Sklansky argued that one of the reasons why commodification has become such an important frame for new histories of capitalism is because—unlike proletarianization—it seems to have no necessary boundaries. This boundlessness is quite different from the implicit premises of a narrative focused on proletarianization. Labor history and business history—as they were written up through, say, the 1990s—thrived on drawing distinctions, on identifying stages of development and differentia specifica . The most important distinction, perhaps, was between the human and the nonhuman: pr...

Sarah Krakoff recently posted a critical take on Edward Abbey on Environmental Law Prof Blog. Some highlights: Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort , we need his irascible, cranky, and irrepressible voice today more than ever.   But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienati...

Today's "This Day in Water History" has this: Judson Harmon, c. 1912 June 11, 1895: First day of tenure of Judson Harmon as U.S. Attorney General. “Harmon issued the most explicit statement of what became known as the American doctrine of absolute sovereignty, that “the rules, principles and precedents of international law impose no liability or obligation upon the United States,” in a case involving a claim by Mexico for damages from diverting the waters of the Rio Grande.” Or, as one source put it: “US Attorney General Judson Harmon tells Mexico that the US will ‘do whatever it pleases’ with water from the Rio Grande.” Commentary: Even for those days, this was a pretty amazing statement.

Sorry for the slow pace of postings - no, I haven't been hitting the Madeira; I'm in the middle of a heavy semester teaching-wise, and on a short deadline for an article, etc. I'd be more than happy, as always, to post pieces by others, especially those of you whose semester is ending soon. Please let me know if you're interested. In the meantime, here's a bit on the latest post on Rachel Laudan's food history blog, "Trade, Trust and Madeira" , a post with both environmental and legal angles. Laudan connects the drinking of Madeira wine to Enlightenment theories of trade and sociability. Laudan writes: I just want to highlight how trade, trust and Madeira reinforced each other.  The wine became Madeira’s most important export around 1700.  By then, sugar, which had been the main export for over a hundred years, the forerunner of the sugar plantations of the New World, had exhausted the soils. For the next two hundred years, Madeira flourished. Producin...

Yesterday's This Day in Water History had the following (apparently originally from here ): Baltimore was one of the last major cities on the east coast to construct a proper sewer system. The City’s inability to install sanitary sewers until 1915 tarnished the appeal of what was otherwise a successful city. Several commissions throughout the nineteenth century formulated plans for a sewer system for Baltimore, but were unsuccessful because of economic conditions and fighting between political parties. Lacking a sewer system, Baltimore relied primarily on privy vaults (cesspools) for waste disposal until the early twentieth century. Privy vaults are holes dug 3 to 75 feet deep, though most were quite shallow. Baltimore’s sandy soil was ideal for privy vaults, making the method the most economically viable form of waste disposal. It was estimated that in 1880, with a population of 350,000, over 80 thousand privy vaults were in use in the City. The Great Fire of 1904 proved to be th...

UC Davis recently hosted a conference marking the 50th anniversary of the California Air Resources Board . Richard Frank reports at Legal Planet : CARB convened for the first time in January 1968, following enabling legislation prompted by the chronic, crippling smog that enveloped Southern California, its residents and economy in the 1950’s and `60’s.  The Board quickly became a national and international leader in air pollution regulatory strategy and pollution control technologies for stationary and vehicular sources alike.  That leadership was reflected in the 1970 Clean Air Act, when Congress granted California–alone among the states–the authority to adopt vehicle emission standards more stringent than those promulgated by the federal government.  (Attendees were reminded at the “CARB at 50” conference that this longstanding federal deference to California auto emission standards is due in large part to strong and successful lobbying by then-California Republica...

Eric Biber recently posted a series at Legal Planet based on his recent  Georgetown Law Journal  article, "Law in the Anthropocene Epoch"  (abstract below). The Anthropocene, for those who have somehow missed this buzzword , is (according to its proponents--it has yet to be officially adopted) a new epoch, in which the signs of human changes to the planet are visible in the geologic record. The article and blog posts contain a useful catalog of ways in which current legal doctrines and institutions do a poor job of dealing with environmental challenges, and essentially argue for the desirability of major changes in liberal conceptions of individual rights and private property. That sounds right, but I'd like to quibble over three historical elements of the argument. First, Biber's confidence in the direction of future political and legal change ("Humans will inevitably respond to the Anthropocene", "These responses will ineluctably lead to greater gove...

Dan Farber recently posted  at Legal Planet on the 35th anniversary of Lucas v. South Carolina Coastal Commission , "the high-water mark of the Supreme Court’s expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation." (For an earlier post on the case, see here .) Farber writes: Lucas epitomized the late Justice Scalia’s crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government’s power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Thirty-five years later, it is striking how little impact the case has had. Under...

Hauling crude oil to a refinery in Casper, Wyoming, c. 1900 (Casper College Western History Center) Dan Farber at Legal Planet  posted the other day  on how the US federal government's regulation of the energy sector goes back a while: To hear some of the debate, you’d think that the Obama Administration breached some longstanding barrier that left energy policy to the states and the market. If there ever was such a barrier, it disappeared over a century ago, with the onset of World War I.  Ever since then, the federal government has been actively shaping energy production, distribution, and sale.  We wouldn’t have the oil industry or the coal industry we have today if the Feds hadn’t been involved.  That’s not to mention all the money the Feds poured into building dams for hydroelectric power. Putting aside hydro, efforts to move the nation away from reliance solely on fossil fuels dates back sixty years when Congress decided to promote the use of nuclear power...

Over at the Niskanen Center blog, Mark Weiner recently posted the very interesting  "Climate Change Denial as the Historical Consciousness of Trumpism: Lessons from Carl Schmitt" . Some excerpts: We need to understand Trumpism as a philosophical movement even better than its own adherents do, and with full interpretive sympathy, and we need to be prepared to confront it along all its philosophical axes. The most central of these axes is Trumpism’s approach to history, because the identity of a political movement, like that of a nation, becomes fully apparent only once it possesses a self-conscious understanding of the past. ***** As a framework for interpreting the past, climate change denial grows logically from the core metaphysical commitments of contemporary populist nationalism in its confrontation with trans-Atlantic, cosmopolitan, individualist liberalism. In this respect one might thus regard it as the distinctive form of anti-liberal historical thinking of our era.  ...

Yesterday's This Day in Water History had this quote from the AWWA's  Water Quality and Treatment  (3rd ed., 1971) (most comments removed): “On October 21, 1914, pursuant to the recommendation of the Surgeon General of the Public Health Service, the Treasury Department adopted the first standards for drinking water supplied to the public by any common carrier engaged in interstate commerce. These standards specified the maximum permissible limits of bacteriological impurity, which may be summarized as follows: The bacterial plate count on standard agar incubated for 24 [hours] at 37 C was not to exceed 100/cc. Not more than one of the five 10-cc portions of each sample examined was to show presence of B. coli. The recommended procedures were those in Standard Methods of Water Analysis (APHA, 1912). These standards were drafted by a commission of 15 appointed members. Among the members of this commission were Charles Gilman Hyde, Milton J. Rosenau, William T. Sedgwick, Geo...

Bevin Boys report for duty in 1943 ( Express ) The blog "ART and ARCHITECTURE, mainly" earlier this week had an interesting post on something I knew nothing about, despite my once-future career as a military historian. It seems that Britain conscripted nearly 50,000 men to work in its coal mines, in place of the military service, during the period 1943-48. From the blog: Coal was essential for military production during WW2; somehow Britain had to match the quotas needed to keep fact­ories churn­ing out the munitions required at the front. And as Britain was unable to import coal in wartime, the production of coal from local mines had to be increased. But how? 36,000 miners were already cons­crip­t­ed for army duty and had left their collieries. Ernest Bevin, wartime Minister of Labour and National Service and a former Trade Unionist, believed the short­age could be remedied by using conscripted men to fill the vacancies in the mines, keeping production at the rates requir­e...

Jill Robbie blogged this week at the University of Glasgow School of Law's blog , exploring connections between her work on the history of Scottish water law (see her Private Water Rights , 2015) and my own on the history of the appropriation doctrine in the western US. Jill writes: In The Colorado Doctrine , David investigates the historical development of the prior appropriation doctrine of water rights, commonly associated with the western states of America. The traditional view of the evolution of this doctrine is that the riparian rights doctrine of the eastern states, which entitles all landowners along a river to reasonable use of the water, was unsuited to the arid climate of the west. Therefore, a “first in time, first in right” system of water rights was created under which rights are obtained through use and earlier users are preferred to those coming later. The water rights are severable from landownership and transferable. For some law and economics scholars, the evolu...

The Public Domain Review  recently posted  (courtesy of archive.org) a fascinating and entertaining animated short from 1956 by the American Petroleum Institute, entitled "Destination Earth". As the Review  explains: Produced at the height of the Cold War, and made at the behest of the American Petroleum Institute (still the biggest lobby for the U.S. oil and gas industry), this great little promotional film from John Sutherland Studios champions not only the wonders of oil as might be expected, but also free-market capitalism. The surprisingly humorous cartoon tells the story of how the suspiciously Stalin-like leader of Mars, named Ogg, sends a rather calamity-prone citizen to Earth to find a better power source for his poorly-running “state limousine”. The exploring Martian, of course, lands in the United States and soon discovers the many and myriad delights of petroleum, and that, in contrast to his home planet, competition between companies is rife. His take-home le...

Water filtration plant at Lake Montebello, Maryland, 1915 This Day in Water History recently posted a Municipal Journal and Engineer  article from 1909 , "Stream Pollution in America", which surveys some of the state-level regulation of water pollution going on at the time. The blogger notes that "we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored", but I'm not sure the situation today is so different . Some excerpts from the 1909 article: At a Conference of State and Provincial Boards of Health of North America, held in Washington last June, the Committee on the Pollution of Streams appointed last year presented a report in which it gave some data concerning the extent to which the pollution of streams was being regulated by the various States. Ohio, New Jersey and Kansas have, according to this report, passed laws during the last few years which ”are especially worthy of note as indicati...

This is the 500th post on this blog! Though I've just finished a series based on an article of mine , this seems like as good an opportunity as any to mention a new piece I just posted, "Historical Analysis in Environmental Law" , forthcoming in the  Oxford Handbook of Historical Legal Research . It's particularly appropriate for this occasion, as working on this blog was extremely helpful to me both in getting a sense of the field and in bringing important work to my attention. So thanks to all of you writing in the intersection of environment, law and history! Here's the abstract of the chapter, I'll probably do a series of posts later: Environmental law has no history. This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that enviro...

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!

"New" Jersey City reservoir, c. 1880 Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water , but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919: Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it.  Read more »