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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Historical analysis in environmental law I: Introduction

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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...
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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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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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