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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...

I recently came across what seems to me a really important article, John Wagner's "Water and the Commons Imaginary" , published in 2012 in Current Anthropology (along with a series of responses by other social scientists of the commons, including Elinor Ostrom, in what must have been one of her last writings). The abstract really doesn't do justice to the article's central argument, so I'll bring some excerpts here (citations omitted): The term “commons” has been appropriated over recent decades by individuals, corporations, and interest groups seeking to benefit from the positive emotional responses that the term seems to evoke. In some cases—shopping commons, for instance—use of the term appears to be mainly a marketing strategy, but in other cases the term carries a definite political argument, most typically an argument against commodification, privatization, or enclosure and in favor of egalitarian, grassroots approaches to resource management. It is at t...

(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...

The latest American Historical Review has a review by Neil Maher of Darren Speece's  Defending Giants: The Redwood Wars and the Transformation of American Environmental Politics (U. Washington Press, 2017). Some excerpts: Speece begins with the conflict’s prehistory, describing the rise in the region during the late nineteenth and early twentieth centuries of a “corporatist” logging industry that was permitted, with encouragement from the California Board of Forestry, to self-regulate cutting practices on privately owned land. Redwood preservation during this period most often involved elite groups, such as San Francisco’s Bohemian Club, purchasing groves from timber companies. The next four chapters, which jump to the late twentieth century and the “Redwood Wars” themselves, follow local activists and their two-pronged strategy—involving lawsuits and direct action campaigns—that all but halted old-growth logging on the North Coast and, in doing so, weakened the corporatist reign...

(Continuing the series on water rights :) Whatever property regime applies to water, the public often retains certain rights in the resource. Thus, for instance, in American law, though a river's water may be owned by riparian landowners or appropriators, the federal government retains a "navigation servitude" in the water with which private owners (and states) cannot interfere ( Trelease, 1965 ). Joseph Sax Recent decades have seen much discussion of the "public trust doctrine", rules that allow public interests, especially environmental ones, to trump the normal property rules in water. Though the doctrine has its roots in the traditional civil and common law, particularly with regard to tidelands ( Selvin, 1980 ), its modern form was first articulated by Joseph Sax in a highly influential article (1970) , in which he argued that the historical doctrine should be developed to encourage courts to subject actions that harm the environment to strict scrutiny. In ...

The latest Environmental History has an article by Ian Matthew Miller, "Forestry and the Politics of Sustainability in Early China" , with some fascinating discussion of arguments for and against regulation in Chinese philosophy. The abstract: Between the sixth and second centuries BCE, Chinese states developed offices to oversee the sustainable use of forest resources. This era, often cited as a period of rampant environmental degradation, also saw the emergence of a discourse of sustainability. The early philosopher texts criticized the environmental and moral degradation of their era in order to promote specific policy interventions. In response to the deforestation they depicted, moralist and pragmatist philosophers alike argued for regulations on land use as the basis of a sustainable political order. Early states used these ideas to justify state forestry, culminating in extensive forest bureaucracies under the Qin and Han empires in the second and third centuries. Thes...

(Continuing the series on water rights :) The empirical work of Ostrom ( 1990 ; Ostrom and Gardner, 1993 ) and others on institutions for governing commons resources has shown that, in practice, common property can be highly successful in managing water resources, depending on the structure and functioning of the institutions involved. She and her collaborators summed up their conclusions ( Ostrom et al., 2010 ): Elinor Ostrom Researchers usually distinguish four basic types of governance systems, defined in terms of who controls access to resources: private property, government property, common property, and open access (i.e., no one's property). Research has consistently shown the inefficient outcomes of open access since open access almost always leads to destruction of any resource that is in great demand. This is the problem identified in Hardin's famous essay, although he called open access "commons," which led to substantial subsequent confusion. The other thre...