faulker079

Peter Reich recently posted an English-language abstract for his "Water Rights in the Mexican Supreme Court during the Postrevolutionary Era: 1918-1946" : This book chapter analyzes the Supreme Court of Mexico’s development of a “national waters” jurisprudence after the 1910-1920 Mexican Revolution through judicial review of amparo cases (challenges to official action). Although the Constitution of 1917 generally defined bodies of water within the country’s boundaries as property of the nation, the Court had to apply this provision to specific disputes between state or local bureaucrats and particular landholders for access control. Competition over springs, storm water, groundwater, drinking water, and infrastructure, as well as problems unique to communal resource ownership and petroleum exploitation, raised questions about how much the government could limit individual uses on behalf of the public. The author concludes that despite the dramatic ideological conflicts of the...

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's  The Laws of England Relating to Public Health , published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law" . You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained . A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's...

Ecology Law Quarterly  recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act" . The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998  The Dawn of Conservation Diplomacy ). Hamilton explains (notes omitted) that: early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared u...

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia ), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments! 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 environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Sile...

(The final installment in the series on water rights :) Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence ( Caponera, 1954 ). Under the system of riparian rights, domestic or "natural" uses have preference over other uses ( Beck, 2000 ), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation ( Trelease, 1955 ). China's water law, too, exempts household and other small quantity uses ( Wouters et al., 2004 ). Recent years have seen an explosion of interest in the idea of a right to water framed in...

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute ". The abstract: This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

Rata forest on on Enderby Island Earlier this year André Brett published "A Sudden Fancy for Tree-Planting? Forest Conservation and the Demise of New Zealand's Provinces" in Environment and History.  The abstract: New Zealand provides a valuable case study of the relationship between colonial statecraft and forest conservation. This article explores the connections between Premier Julius Vogel’s Forests Act of 1874 and the abolition of New Zealand’s provinces in 1876, locating conservation within the broader context of popular discontent with provincialism. It argues that previous perspectives have either downplayed or exaggerated the significance of conservation to provincial abolition, and that the relationship between the two was complex and uneven. Abolition profoundly affected conservation, but the stimulus for abolition had been gathering elsewhere even as conservation shaped its timing.

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...

"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 »