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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.

January's Environmental History  has a review by Leif Fredrickson of Michael Mix's  Leaded: The Poisoning of Idaho’s Silver Valley (OSU Press, 2016). From the review: The poisonous history of the Bunker Hill Company should be as well known to environmental historians as the Battle of Bunker Hill is to historians of the American Revolution. Located in the Silver Valley in northern Idaho, Bunker Hill mining and smelting operations polluted the surrounding area and poisoned residents and workers with lead for a century. In the 1970s, Bunker Hill’s operations wrought “the worst community lead exposure problem in the United States,” according to the Centers for Disease Control and Prevention. The silver lining to the Silver Valley disaster was that it fueled new and stronger national regulations for lead pollution. In Leaded , Mix seeks to unearth the “root causes” of mining and smelter pollution in the Silver Valley. He argues that pollution went unabated for most of the twe...

This week's installment in the digital library of environmental law moves ahead to the twentieth century with Carl E. Geuther's Compendium of Water Pollution Laws ,  published in 1959 by the Manufacturing Chemists' Association, headquartered in Washington, DC. This was the fifth in a series of "Water Pollution Abatement Manuals" published by the trade organization, evidently with a target audience of engineers, managers, and other non-lawyer employees of the chemical industry. Geuther, a lawyer, worked at the time for Du Pont Chemicals; he also seems to have represented them and other chemical companies in court at various times. The Preface explains that the manual is: a compendium of the laws of the forty-nine states (including the District of Columbia, the Territory of Hawaii, Puerto Rico, and the federal laws of the United States as they pertain to water pollution and water pollution abatement). Statutes and regulations of archaic vintage that are ignored by ...

Barada River in Damascus Yehoshua Frenkel, a professor at University of Haifa and member of our local environmental history forum , recently pointed me to a 2011 chapter by Boaz Shoshan on water law, "Mini-Dramas by the Water: On Irrigation Rights and Disputes in Fifteenth-Century Damsacus" . The abstract: Apart from discussions of matters of irrigation in legal works, medieval sources provide us with little information on the human dynamics and social interaction that are an integral part of irrigation systems. Some cases involving water were straightforward, whereas others were not. A laconic statement about a settlement ( ṣulḥ ) that was reached in Muḥarram 886/March 1481, in the presence of the viceroy of Damascus and the chief qāḍīs, between one Kamāl al-Dīn and Shihāb al-Dīn al-Muḥawjib concerning water that was coercively ( zulman ) diverted from the al-Manshīya river canal, provides us with only a faint echo about such conflict. Fortunately, on other occasions of wate...

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...

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 Court of Aldermen and Common Council of the City of London (1780) Last week's  Reviews in History posted a review by Elly Robson of William Cavert's  The Smoke of London: Energy and Environment in the Early Modern City  (Cambridge UP, 2016, recently out in paperback). (For an earlier review see here .) From the review: Cavert is particularly strong on the complex role of political and legal institutions – both local and national – in managing coal supply and regulating smoke. In his account, the politics of coal and smoke was a politics of governance. Chapter five, ‘Nuisance and neighbours’, deals with the legal category of ‘nuisance’ to cast light on how conflict over pollution was defined and mediated. In it, Calvert investigates a smorgasbord of relatively ineffective litigious avenues for pursuing redress against industrial polluters who infringed on royal or individual property and health. Law Reports form the mainstay of the chapter and Cavert’s frustration is eviden...

Bixby Creek Bridge near Big Sur, California (Bill Lane Center for the American West) The issue of public beach access has played a major role in the history of environmental law (see, e.g., here , here , and here ). It also may be responsible for some of the backlash against environmental regulation. Last year the Journal of Policy History published Jefferson Decker's "Pacific Views: Property Rights, the Regulatory State, and American Conservatism" . The article opens: In November 1976, a bookkeeper named Viktoria Consiglio used money from an inheritance to purchase a plot of land overlooking the Pacific Ocean just south of Carmel, California. Two years later, Consiglio and her husband prepared to build a one-bedroom house for use during their retirement. They submitted applications for a building permit only to have their request denied. The impediment was the California Coastal Commission, a statewide regulatory agency that Californians had recently established in order...

Public Books recently ran a review by Max Holleran of  Peter Dauvergne's  Environmentalism of the Rich (MIT Press, 2016). Holleran writes that the book traces the shifting tactics of mainstream environmentalism from the radicalism of the 1970s to the corporate partnerships of the 1990s, in which companies accomplished incremental changes through in-house consultations with groups like the Sierra Club. It details how many green groups began as firebrand protectors of the earth, deeply inspired by indigenous movements that opposed the sale and commodification of nature, but have since morphed into something akin to compliance departments for large companies. ***** Green movements of the Global North and the Global South are markedly different; within that divide, unique national experiences have produced a variety of environmentalisms, some of which do not even use the name and prefer to align with indigenous rights or class-based movements. The 1970s environmental movement came of...

The Ahwahnee Hotel in 1980 (George Rose) Daniel Duane has an interesting piece in yesterday's New York Time s  on genocide of the Yosemite Valley's natives and the replacement of their names with Anglo ones, and it all starts from a trademark dispute. After detailing the killing and renaming of places in Yosemite carried out by California militia, Duane explains both the legal dispute and the complexity of the name issue: The recent furor over the name of the Ahwahnee began in 2015, when a subsidiary of the Delaware North Corporation, which operated the park’s hotels, restaurants and shops for more than two decades under a government concession contract, lost its contract to Aramark (no tragedy there — the burgers were criminal). The government says Delaware North quietly registered the trademarks for the names on the hotel and the other places and is now demanding payment for their use. The National Park Service came up with new names and told Delaware North to get lost. Now t...

Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism" , which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of  Boomer v. Atlantic Cement Co. , "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution". Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump): Read more »

"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 »

Ed Mendoza of the Gila River Indian Community, Arizona (photo: Monica Almeida/NYT) Dylan Hedden-Nicely recently posted "The Legislative History of the McCarran Amendment: An Effort to Determine Whether Congress Intended for State Court Jurisdiction to Extend to Indian Reserved Water Rights" , published in Environmental Law . The abstract: The year 1976 marked a sea change in federal policy regarding the treatment of American Indian tribes and their water rights. In that year, the Supreme Court of the United States was called upon to determine the scope of the McCarran Amendment, a rider on a federal appropriations bill that waived the sovereign immunity of the United States in state court general stream adjudications “where it appears that the United States is the owner or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.” The Supreme Court, in what has been called a “clear example of judicial legislation,” i...