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Summer 2023: Net Zero

Literary Resources

Frederick H Turner and Madeline June Kass


  • Examines the book, The Greater San Rafael Swell: Honoring Tradition and Preserving Storied Lands, as a lesson in addressing the management of public lands.
  • Investigates the book, Saving Yellowstone: Exploration and Preservation in Reconstruction America; a history of U.S. public lands set during the post-Civil War era.
  • Reviews the ABA SEER book, Global Climate Change and U.S. Law; a go-to resource for climate change law in the U.S.
Literary Resources
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The Greater San Rafael Swell: Honoring Tradition and Preserving Storied Lands

Stephen E. Strom and Jonathan T. Bailey
The University of Arizona Press, 2022

Reviewd by Federick H. Turner

Stephen E. Strom and Jonathan T. Bailey’s remarkable book tells a story about “how citizens of a small county in the rural West resolved perhaps the most volatile issue in the region—the future of public lands.” The small county they refer to is Emery County, which is located in central Utah near numerous national parks and national monuments. But the climax of the story is not the creation of a new park or monument; instead, it is Congress’s 2019 passage of the Emery County Public Land Management Act, which not only created the 217,000-acre San Rafael Swell Recreation Area and 660,000 acres of wilderness, but also ensured future use of public lands by ranchers, miners, and off-highway vehicle enthusiasts. At first glance, the scope of The Greater San Rafael Swell may suggest that it is a local history of a remote area. Yet the authors aim for, and achieve, something much broader: they provide tangible lessons for other parts of the country that are striving to address management of public lands from the ground up and in a collaborative fashion.

Before Strom and Bailey share those larger themes, they describe the long history that preceded the passage of the Emery County Act. They begin with a survey of the County’s physical features, including the eastern edge of the Wasatch Plateau, the Molen Reef, and the San Rafael Swell, which rises 4,000-7,000 feet in elevation and stretches for 75 miles. It quickly becomes apparent that the book is masterfully laid out. The authors pair text with detailed maps and stunning photographs of the landscape. As someone unfamiliar with Emery County, I found this approach to be very useful and hopefully it will serve as a model for others writing about the intersection of law and the environment.

The brilliant multimedia journey continues as the authors delve into the County’s geological history. They provide diagrams of tectonic shifts that resulted in the distinctive basin and range landscape in Utah and dovetail them with lyrical language reminiscent of John McPhee’s Basin and Range. Strom and Bailey write:

Atop the landscape, wind and water served as the rasps and riffles that removed softer rocks and sculpted finer-scale structures—spires and hoodoos, flat irons and hogbacks—that add a surreal quality to the arresting drama of the county’s landscape.

Next, the authors turn their historical and photographic lenses to the people that have inhabited Emery County. Notably, they devote as much space to Indigenous peoples as they do to the period that began when non-natives reached the area in the early 19th century. The Indigenous history dates back approximately 13,000 years and the reader can see not only petroglyphs but also fascinating split-twig figurines. Following the end of the Black Hawk War in 1872, Emery County saw an influx of settlers and the 20th century witnessed a series of resource extractions that began with coal mining, followed by ranching, uranium mining, and the construction of Joe’s Valley Dam.

The impetus for the 2019 Emery County Act was another piece of legislation, the Federal Lands Policy and Management Act of 1976, which required the Bureau of Land Management (BLM) to survey the lands it manages—BLM land covers 83% of Emery County—and designate wilderness study areas. “Absent a locally based plan,” write Strom and Bailey, “Emery’s residents were fearful that decisions regarding the future of nearby public lands would be decided in Washington by legislative action creating wilderness areas, or executive declaration of a national monument.” And so, by 1995, the County Commission had established a Public Lands Council that represented a diversity of stakeholders to engage with agencies.

Although multiple efforts to develop legislation failed between 1998 and 2016, a window opened in 2018. The recent controversies over the Bear Ears and Grand Staircase-Escalante Monuments created an obstacle for getting buy-in from conservationists, yet a breakthrough occurred during a conversation that we learn about through an interview—one of more than 40 that the authors conducted. A conservationist told congressional staffers “we’re all sick of this winner-take-all approach to Utah politics” and that served as a signal that the group was “willing to compromise.” Negotiations led to a proposed bill, which eventually passed as part of an omnibus bill.

The Emery County Public Land Management Act is not the only example of “collaborative conservation”; the authors describe three other case studies, one other from Utah and two from Idaho. The authors then identify several common elements to “effecting constructive and civil resolution of seemingly intractable battles over public lands.” For example, the authors recommend meeting not around conference tables but “in the land” because it can build “trust among individuals holding very different views.” They also highlight the importance of giving Tribes a voice in the process.

One of their most interesting recommendations is to think creatively about the words used to describe public land designations. “Doing so allows protection tailored to the characteristics and value of the landscape,” write Strom and Bailey. The San Rafael Swell Recreation Area provides an excellent example because it embodied the idea of multiple use for public lands in the Mountain West.

Saving Yellowstone: Exploration and Preservation in Reconstruction America

Megan Kate Nelson
Scribner, 2022

Reviewd by Federick H. Turner

Megan Kate Nelson’s Saving Yellowstone is a compelling and carefully constructed book that surveys a key moment in the history of public land in the Mountain West. Midway through the book, she writes: “There is nothing like standing on a mountaintop for seeing how everything fits together.” Nelson is describing the scientist-explorer Ferdinand Vandeveer Hayden standing at the summit of Mount Washburn during his 1871 Yellowstone Expedition, but it is also a useful metaphor for Nelson’s work. By looking closely at many of the people who had an interest in the Yellowstone area, she is able to see how the contests over the terrain fit together. But she also uses the story of Yellowstone National Park’s establishment to paint a broader picture about the state of the nation during the post-Civil War era. From Nelson’s vantage point, Yellowstone is “a landscape of both darkness and light, an ‘empire of shadows’” and it “reflected so much of what America had become.”

In many respects, Saving Yellowstone is the story of three people. Nelson weaves together key moments in the lives of Hayden as well as the Lakota chief Sitting Bull and the financier Jay Cooke. She portrays Hayden as a dogged scientist eager to cement his legacy in an echelon of explorers that included John Wesley Powell and Clarence King. In 1871, Hayden got his chance. Congress appropriated money for a Hayden-led expedition and he was appointed as a geologist for the government by the Secretary of the Interior. Nelson provides an eloquent account of the expedition into the Yellowstone Basin, but also contextualizes the mission: “Through its scientific data, visual images, and survey narratives, the 1871 Yellowstone Expedition would lay claim to this unique landscape” and “could wrest Yellowstone’s lands and waterways away from Indigenous nations.”

One of those nations was the Lakota, and through Sitting Bull’s life, Nelson demonstrates not only the Indigneous resistance to westward expansion, but also the fact that the Yellowstone Basin was not tabula rasa—it was part of the traditional homeland for many Native Americans. Sitting Bull and the Lakota had an increasing number of encounters with white settlers in the 1870s. One occurred in the summer of 1871, not far from the location of the Hayden expedition. The following year, the Lakota fought twice with those surveying for the Northern Pacific Railroad.

The Northern Pacific Railroad runs through Nelson’s book, and she shows the efforts by Cooke to raise the investments necessary to fund its construction. Cooke envisioned a second transcontinental train that would run 50 miles north of the Yellowstone Basin. To make this vision a reality, Cooke also employed a public relations campaign that included his paying Congressman William Kelley to deliver a speech on the “Great Northwest” and sending painter Thomas Moran to join the Hayden Expedition to help capture the beauty of Yellowstone. In October 1871, Kelley urged Hayden to lobby for the creation of Yellowstone National Park, and less than a year later Congress passed the Yellowstone Act.

These are just a few examples of Nelson’s larger point about how the actions of Hayden, Sitting Bull, and Cooke affected each other: “Sometimes their paths crossed, and sometimes they collided.” But she also builds upon these individual connections to make a larger argument about federal power in the 1870s. Specifically, she juxtaposes the government’s “effort to protect its white and Black citizens” in the South with the effort to “force the assimilation of Native peoples” in the West. Nelson describes the work of the Joint Select Committee on the Condition of Affairs in the Late Insurrectionary States, which was established in the summer of 1871, and a subcommittee sent to South Carolina to investigate the Ku Klux Klan. She also describes the Committee on the Condition of Indian Tribes, which in 1867 concluded that in order for the United States to “more firmly” incorporate Western states and territories, the government would need to remove Indigenous peoples to reservations.

The connective tissue between reconstruction in the South and expansion in the West is not as strong as it is between Hayden, Sitting Bull, and Cooke, but that may result from the fact that Nelson’s goal here it not so much to capture a full picture of America in the 1870s, but rather to take the measure of Yellowstone’s creation by triangulating it with policies made in Washington, D.C. and implemented in the South. In this way, Nelson’s approach is like that of surveyor standing atop a mountain.

The work of the federal government in the South and in Yellowstone peaked in 1871 and 1872, but Nelson also devotes time to the denouement. Toward the end of the book, we learn about the Panic of 1873, the compromise of 1876 that led to the end of reconstruction efforts in the South, the death of Hayden due to complications from syphilis in 1887, and the murder of Sitting Bull in 1890. Given all of this, Nelson comments that it “seems extraordinary” that the government was able to exert power to “explore and preserve Yellowstone and to protect the civil rights of Black southerners.” Yet she also emphasizes the contradiction between fighting for civil rights while oppressing Native Americans. In this way, the geysers of Yellowstone revealed “that what lies beneath the surface in this nation is always threatening to explode.”

Nelson has expertly reconnoitered a key moment in the history of public lands in America, but her book is also an engaging read that seamlessly blends legal history with visual and cultural history.

Global Climate Change and U.S. Law

Michael B. Gerrard, Jody Freeman, and Michael Burger, Editors
ABA Section of Environment, Energy, and Resources, 3rd edition, 2023

Reviewed by Madeline June Kass

In this 3rd edition of Global Climate Change and U.S. Law, the editors update and extensively expand their authoritative text on climate change law in the United States, keeping pace with the rapidly changing and expanding legal landscape. The book’s primary purpose, however, remains the same as in earlier editions—to help readers navigate this complex field. Editor Michael B. Gerrard (professor, and founder and faculty director of the Sabin Center for Climate Change Law, at Columbia Law School) begins the 3rd edition noting,

It is difficult to characterize U.S. climate law succinctly. The body of law relevant to climate change encompasses traditional pollution regulation, natural resources management, energy efficiency mandates and renewable energy incentives, land use and transportation planning, corporate disclosure, adaptation, and much more. The emerging regime is being created at every level and branch of government and through numerous private sector and voluntary programs. U.S. climate law is in some senses fragile and in others robust, and it is rapidly evolving. This volume aims to make clear its scope and complexity.

Toward this end, “each chapter focuses on a discrete area of law, level of government, or topic,” with discussions of key developments and “projections about how events might unfold in the future.”

New to this edition, chapter 2 sets the scene by placing U.S. climate law in the context of the international legal framework. Next, new chapters examine control of non-carbon dioxide pollutants (methane, nitrous oxide, f-gases, and black carbon emissions), climate justice (both climate policy impacts on underlying patterns of environmental, economic, and social injustice and climate justice as an important lens in selecting among climate policy options), regulation of greenhouse gases under the Clean Air Act, Endangered Species Act adjustments to climate impacts on biodiversity, civil remedies (common law and state actions to obtain injunctive relief and damages associated with climate change contributing activities), climate-related financial risk management and disclosure, and climate-related land use and transportation policies. New chapters in Part III shift the focus to the role of states in U.S. climate policy—both individual state and collaborative multistate actions—and local responses to climate change (including mitigation and adaptation strategies by municipal governments).

Part V looks ahead. Along with an updated chapter on climate adaptation law, new chapters consider legislative and regulatory initiatives for carbon capture and sequestration and carbon dioxide removal, agriculture (farm policy, regulation, and offset markets in response to climate change), and public natural resources (how climate change impacts our public lands and waters and shapes the federals laws governing use of these resources).

Last but by no means least, a new concluding chapter “Taking Stock” contributed by editor and professor Jody Freeman (formerly Counselor for Energy and Climate change in the Obama White House and member of the Biden transition team working on climate action) reflects on the most important legal developments since the last edition and muses about the future direction of U.S. climate policy. Looking back, Freeman identifies action under the Biden administration as impressive, but likely still insufficient—“perhaps most strikingly, the U.S. Congress also acted, passing legislation requiring the phasedown of hydrofluorocarbons, along with three other laws that, collectively, direct historic amounts of funding, tax credits, and subsidies to promote a clean energy transition;” nevertheless “even these significant steps still seem inadequate to the scale of the climate challenge.” Looking forward, Freeman sees a continuous back and forth where “Democratic presidents advance aggressive climate rules and policies while Republican presidents rescind or weaken them.” This is a dynamic influenced by the Supreme Court’s now 6–3 conservative supermajority and the “ominous long-term implications for federal regulation” of the Court’s West Virginia v. EPA decision.

Freeman anticipates the challenge ahead as how “to integrate climate and energy policy into a coherent national strategy that serves the country’s long-term social, economic, and geopolitical interests.” A challenge recognized to be “no small feat,” climate change, Freeman concludes, “now touches virtually every legal field. Congress has taken some critical steps to spur the clean energy transition, and there is no shortage of legal and regulatory tools to drive decarbonization. But the road ahead is long, and the need for bold action remains acute.”

For lawyers, academics, and students looking for a solid, authoritative guide on where we’ve been and where we’re headed, this book is a go-to resource.