Friday, December 30, 2016

Was zoning constitutional?

A while back I promised more on John Nolon's series on zoning's centennial, so here are some excerpts from his Part 3: "Zoning was Contagious, but was it Constitutional?":
By the mid-1920s, zoning had been challenged in several state courts with split results. A majority of the courts that considered early zoning laws agreed with State ex rel. Carter v. Harper (Wisconsin, 1923), which upheld “so-called zoning” against takings, equal protection, and due process claims. Several quotes from the case explain this result: In Harper, the court established that ”…the rights preserved to the individual by these constitutional provisions are held in subordination to the rights of society.”  Further, the case held that “[t]he purpose of the law is to bring about an orderly development of our cities….Everyone who has observed the haphazard development of cities…has appreciated the desirability of regulating the growth and development of our urban communities.” Ultimately, the court raised a critical question: “When we reflect that one has always been required to use his property so as not to injure his neighbors...can it be said that an effort to preserve various sections of a city [from harmful intrusions] is unreasonable?”
Other courts agreed with Judge Offutt, who wrote in Goldman v. Crowther (Maryland 1925): “This ordinance at a stroke arrests that process of natural evolution and growth, and substitutes for it an artificial and arbitrary plan of segregation….” He further noted “…it has never been supposed in this State that the police power is a universal solvent by which all constitutional guarantees and limitations can be loosed and set aside regardless of their clear and plain meaning…. [T]hose limits must bear some substantial relation to the public health, morals, safety, comfort or welfare.” Thus, “…so much of the ordinance as attempts to regulate and restrict the use of property in Baltimore City is void.” The court found that the ordinance itself did not contain adequate provisions demonstrating that it was bottomed on legitimate public interests. On its face, the separation of land uses into zones was void in Maryland.
In the leading case of Village of Euclid v. Amber Realty Co.:
The Court noted that ”while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.” Invoking the law of nuisance and the “painstaking considerations” found in the reports of various planning and land use commissions and experts, which concur in the view that the segregation of different land uses serve many public interests, the Court found zoning constitutional. And, it did so by firmly establishing the standard still used today in determining whether a zoning regulation is valid exercise of local police power: “The reasons supporting the separation of land uses could not be said to be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare.” 
(Chad Felton — The News-Herald)

Tuesday, December 20, 2016

Treaty rights, fish harvesting, and toxic risk

Symbolic Petition of Chippewa Chiefs, presented at Washington, January 28, 1849,
headed by Oshcabawis of Monomonecau, Wisconsi
In the latest development on the history of Indian treaties and the environment (see also, for example, here and here), the new issue of Water History has an article by Valoree Gagnon, "Ojibwe Gichigami (“Ojibwa’s Great Sea”): an intersecting history of treaty rights, tribal fish harvesting, and toxic risk in Keweenaw Bay, United States". The abstract:
Ojibwe Gichigami (“Ojibwa’s Great Sea”) is the spirit name for Lake Superior; it is also the homeland of the Keweenaw Bay Indian Community (KBIC) where Gichigami fishing has sustained the people for nearly a millennia. As signatories to the 1842 Treaty With The Chippewa, the KBIC retain rights for hunting, fishing, and gathering, and worship within ten-million acres of ceded land and water territory. However, due to elevated levels of toxics such as methyl-mercury and polychlorinated-biphenyls (PCBs), Lake Superior is currently under numerous fish consumption advisories that inform the public of harmful contamination levels. Thus, harvesting provides socio-cultural and spiritual wellbeing for the KBIC, and simultaneously, places their physical health at great risk. By using ethnographic methods and oral histories, this article illustrates how an intersecting history of KBIC treaty rights, tribal fish harvesting, and toxic risk is the center of their water story. Over the course of several decades, they have encountered dire consequences due to federal assimilation policies, state regulatory control over their harvesting, and environmental degradation and contamination. KBIC present-day perspectives of toxic risk are rooted in this history. In 1971, the Michigan Supreme Court presented a landmark decision: the People v. Jondreau reaffirmed 1842 treaty rights for the KBIC. This precedential decision was followed by Great Lakes states issuing the nation’s first fish advisories. The KBIC historical context is imperative to understanding present day environmental policy and its relevance (or irrelevance) for those most at-risk, emphasizing how social injustices are manifested through a people’s water history.

Thursday, December 15, 2016

More on forests in revolutionary France

Vallée de La Loue - ©CRT de Franche-Comté
H-Environment just published a roundtable review of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015), previously covered here. Some legal highlights, starting with Caroline Ford's comments:
The book is based on a wealth of archival material and primary documents that Matteson found in both national and provincial archives in France. She sorts through and illuminates very technical modes of forest management, while setting the scene for conflicts between local communities and the French state in masterful ways. She seeks to explore reform efforts on the part of the state as well as the ideological agenda of lawmakers, landowners and commentators in order to explore both the successes and failures of natural resource allocation and environmental conservation in the context of sweeping revolutionary change and the expansion of state power. She examines a number of important questions in this regard including why conservation policies prompted resistance; and how customary rights were supplanted by those of private property. To this extent she resuscitates a debate, which has recently again become the focus of some attention among environmental historians in France on the “tragedy of the commons,” which was sparked by Garrett Hardin’s 1968 article in Science and Elinor Ostrom’s rebuttal (among others).
The great strength of Matteson’s close study of the Franche-Comté lies in grounding her work in a micro context, in a specific time and place. She shows the very real impact of policies enacted in the capital on a rural region of France, but one wonders how and whether imperial conquest that began during the period which she explores and French encounters with other forested landscapes shaped (or did not shape) policy in the metropole, a subject explored in Richard Grove’s path-breaking Green Imperialism. Matteson mentions, for example, that the French forest code was exported wholesale to Algeria at the time of conquest, where conditions were far different from those in metropolitan France. Many foresters served in both France and in her colonial possessions. This code was finally revised in 1903, and one wonders about the extent to which foresters considered and compared colonial and metropolitan forests and landscapes. 
Finally, calls for saving forests came from other quarters and were articulated less in terms of conservation than in terms of heritage preservation and patrimoine. These calls came not from engineers, scientists, or foresters but from a middle class urban public. It was the Barbizon school of painters who were behind Napoleon III’s 13 August 1861 decree that created the first protected natural landscape in the forest of Fontainebleau as a réserve artistique, and the painters fought pitched battles with foresters, who defended their own conservationist initiatives, such as planting pines. Both made claims about protecting the forest, but in very different ways.

Sunday, December 11, 2016

Trends in environmental regulation

(Fortnightly Magazine)
The 2016 Annual Review of  Law and Social Science had an article by Neil Gunningham and Cameron Holley, "Next-Generation Environmental Regulation: Law, Regulation, and Governance". Once you get passed the odd description of environmental law, along with design standards such as best available technology, as "conceived in the 1970s" and the odder tracing of the origins of command-and-control regulation to the creation of Yellowstone National Park in 1872, the article goes on to map the changes in environmental regulation in recent decades. The abstract:
This article analyzes more than four decades of environmental law, regulation, and governance in various Anglo-Saxon and global jurisdictions. It shows how, after the heydays of law and command and control and the swing to economic instruments, voluntarism, and light-handed initiatives, new phases evolved — their most important manifestations being pluralistic regulation, new technologies, compliance, and new governance. It shows how each of the frameworks examined proposes its own solutions and has something valuable to offer, as well as its own limitations. The article concludes by discussing a fundamental challenge confronting the field, namely, how to orchestrate the many possible approaches and relationships available on the legal, regulatory, and governance spectrum.
The authors' evaluation of the attack on traditional regulation in recent decades (citations omitted):
Broadly speaking, these state-centered approaches to law were relatively effective, achieving several gains in halting and reducing environmental degradation. Indeed, a range of findings suggest that state law approaches are the single most important driver of improved environmental performance, particularly of large industries. 
Nevertheless, by the 1980s direct law was widely criticized for being inflexible and excessively costly. At the international level, treaty congestion and fragmentation led to claims that international environmental law was unwieldy, incoherent, and ineffective in confronting increasingly serious global environmental challenges. Similar claims were raised at the domestic level, where the centralized and uniform nature of command and control was increasingly maligned as costly, cumbersome, inefficient, and insensitive to local contextualities.
A major source of these command-and-control critiques were business groups, who called for a reduction in the economic burdens that compliance with environmental law placed upon them. Adversarial enforcement by deterrence-oriented agencies, primarily in the United States, did little to allay these concerns and produced counterproductive resistance from regulated businesses and individuals.

Friday, December 9, 2016

Ecology and procedure in the history of ecosystem management

A while ago we noted a review of James Skillen's book on the US Bureau of Land Management. Now American Historical Review has a review by Leisl Carr Childers of Skillen's latest book, Federal Ecosystem Management: Its Rise, Fall, and Afterlife (University Press of Kansas, 2015). Childers writes:
Divided into two parts and featuring three case studies, Federal Ecosystem Management examines the historical contexts of ecological science and public administration from which ecosystem management emerged in the 1960s and 1970s and analyzes its implementation during the George H. W. Bush and William J. Clinton presidential administrations. According to Skillen, the National Environmental Policy Act (NEPA, 1969) and the Endangered Species Act (ESA, 1973) formed the cornerstones of ecosystem management. These legislative mandates did not systematize ecosystem management; rather, they allowed federal land management agencies to implement two competing versions of the paradigm. Ecosystem management, undergirded by the ESA, focused on achieving substantive goals that married ecosystem protection with resource development and provided a dynamic process through which land managers could respond to the constantly shifting complex of ecological systems by continually adapting their management plans to reach a specific goal. In contrast, ecosystem management relied on NEPA and concentrated on achieving procedural goals by using scientific assessment and open, democratic deliberation. In this version, gathering scientific information and using public input to shape management decisions continued to ensure sustained yield in natural resource development.
Yet without a clear legislative mandate to guide the process, the application of both versions of ecosystem management was as varied as the missions and cultures of the land management agencies that employed them. In case studies on the Greater Yellowstone Ecosystem, where the Forest Service and National Park Service first attempted collaborative projects that utilized the paradigm, and the Northwest Forest Plan and the Interior Columbia Basin Ecosystem Management Project, which emphasized the substantive and procedural versions of the paradigm respectively, Skillen deftly demonstrates the political difficulties surrounding the actual implementation of ecosystem management. In no context was either version of the paradigm truly operational, and the tension between the two variations has perpetrated increasing political polarization. Nevertheless, Skillen leaves readers with the sense that despite its failure, the basic tenants of ecosystem management remain.

Friday, December 2, 2016

Lessons from environmental history

I recently came across Erik Podhora's "Lessons for Climate Change Reform from Environmental History: 19th Century Wildlife Protection and the 20th Century Environmental Movement", published in last year's Journal of Environmental Law and Litigation. The abstract:
The prospect of national climate change legislation currently seems dim, but protective legislation for the natural environment has not always been out of reach. State wildlife laws of the 19th century demonstrated that concerted action could persuade state legislatures to shift away from the fundamental paradigm of unregulated hunting when the declining populations of many species caused public alarm. Nearly a century later, in 1969, several high-profile incidences of acute pollution occurred, and a widespread environmental movement blossomed that prompted a previously indifferent President to champion the call for environmental policy. If this pattern held true, unusually strong storms or wildfires of increasing frequency and intensity in recent years should have generated public support for legislation to combat climate change. However, climate change reformers in the 21st century have not been able to convince Congress to seriously consider remedial legislation. This Article explores the factors that contributed to the success of the 19th century state wildlife movement and the 20th century environmental movement in order to better understand what climate change reform efforts may be missing.

Sunday, November 27, 2016

Legal history of the Scheldt

Fragment of an engraving by F. Galle, ca 1580
(Bergen op Zoom in Pictures)
Otto Vervaart's Rechtsgeschiedenis Blog recently posted on "The Schelde river, a disputed boundary", examining, among other sites, the Scheldt River Collection of the Peace Palace Library. Vervaart gives some background (the river is called Schelde in Dutch and Escaut in French):
The navigation on the Schelde had been already an issue long before the Belgian independence in 1839. During the Dutch Revolt in the sixteenth century the blockade of the Schelde massively damaged the trade to and from Antwerp, and prompted many Flemish merchants to go to the North. Amsterdam’s growth in economic power around 1600 is to a substantial degree due to an influx of merchants from Flanders, their talents and networks. However, this period does not come into view in the digital collection. The Peace Palace Library has digitized books from its own collection. Apparently fifteen works from 1784 and 1785 are the earliest available. Among these works is a treatise by someone more famous for his role in French history. Honoré Gabriel de Riqueti, comte de Mirabeau (1749-1791) published a treatise with the title Doutes sur la liberté de l’Escaut, réclamée par l’empereur; sur les causes & sur les conséquences probables de cette réclamation (London 1785). It was this work that brought Mirabeau to the attention of the general public in France. The Peace Palace Library digitized also a contemporary Dutch translation of this treatise. Some of the digitized publications discuss the role of the Schelde in Dutch and Belgian history starting with the medieval period, for example Charles Terlinden’s study ‘The History of the Scheldt’, History 4 (1920) 185-197, 5 (1921) 1-10, which sparked immediately a reaction from a Dutch historian, F. de Bas, ‘Another version of the Scheldt history’, History 5 (1921) 159-170.
The rivalry between the Dutch North and the Flemish South has not been the only cause for conflicts. The Dutch neutrality during the First World War made matters even more acute. After the First World War the attempts at a new treaty about the Schelde and the proposals to build a canal between the Schelde and the Rhine-Meuse estuary failed in the end in 1927 after heated national debates. More than one hundred publications in the digital collection bear witness to this prolonged affair. Legal historians, too, looked at the Scheldt question. The digital collection contains two publications by Ernest Nys, ‘Les fleuves internationaux traversant plusieurs territoires : l’Escaut en droit des gens’, Revue de droit international et de législation comparée 5 (1903) 517-537 (1903), and L’Escaut en temps de guerre (Brussels 1910). In 1940 Eduard Maurits Meijers published his study ‘Des graven stroom’, Mededelingen van de Koninklijke Nederlandse Akademie der Wetenschappen, Afdeling Letterkunde, new series, 3/4, pp. 103-205, in which he traced the medieval claims and jurisdictions on the several branches of the Schelde. Meijers thoughtfully added transcriptions of the main documents he discussed. In 1953 Chris van der Klaauw, between 1977 and 1981 the Dutch minister of foreign affairs, defended his Ph.D. thesis in history about the interwar relations between the Netherlands and Belgium [Politieke betrekkingen tussen Nederland en België, 1919-1939 (Leiden 1953)].
'Townscape' of BoZ (detail) by Samuel de Swaef and J. ab Heede, Atlas van Stolk (1634)
(Bergen op Zoom in Pictures)

Friday, November 25, 2016

Administrative expertise in the UK

The latest Journal of Environmental Law has a review essay by Elizabeth Fisher, "The Enigma of Expertise", reviewing Knowledge, Policy and Expertise: The UK Royal Commission on Environmental Pollution 1970–2011, by Susan Owens (OUP, 2015). Some of the historical background in the article (with footnotes omitted and links added):
Within UK administrative law and public administration there has always been scepticism of attempts at bureaucratic rationalisation. Public administration in most jurisdictions grew in a haphazard fashion but in the UK particularly so. The reasons for this are many and overlapping. The lack of a vigorous doctrine of separation of powers and thus a fused constitutional and administrative law is one factor. The failed ‘Prussian bureaucratic’ experiments of Edwin Chadwick in the 19th century another. As is the ideal of the generalist civil service as promoted by the Northcote Trevelyan Report in 1870. Administrative law took far longer in the UK to be recognised and when it did the American administrative lawyer, Kenneth Culp Davis accused British judges of being too much like ‘bricklayers’ and not enough like ‘architects’. He also noted that ‘the essence of the administrative process is missing from the literature of English administrative law’. It is also useful to remember that Lord Diplock’s articulation of the three grounds of judicial review was an act of codification not rationalisation. As Kamenka has put it, the common law also has traditionally had an ‘anti-administrative character’....
Throughout the 19th century, there was a ‘piecemeal accumulation of expertise’ in British government. By the 1920s, the need for expert public administration was becoming obvious. A major catalyst for this need was World War I as it made clear the nexus between knowledge and power. Recognising that nexus did not however result in a rose tinted understanding of expertise. ‘The expert is a notoriously bad judge’ ECS Wade wrote in 1930 (judges on the contrary were of course good at judging). Lord Hewart in 1930 wrote that expert officials were ‘naturally and necessarily hidden and anonymous’ so that they could not be examined or ‘brought to book’. Zimmern noted that ‘the solution worked out by Expert Committees are not edicts imposed by an omniscient dictatorship’.

Sunday, November 20, 2016

Bhopal Digital Archive

Mitra Sharafi recently posted on the digital archive created by her and others at the University of Wisconsin on the 1984 Bhopal disaster in which lethal gas leaked from the local Union Carbide plant and killed 15,000 to 25,000 people. The archive is centered on documents collected by legal scholar Marc Galanter, who was involved in civil litigation against the company. The archive explains the basic legal chronology:
Bhopal is frequently referred to as the world’s worst industrial disaster. The leak followed a period of reduced maintenance and neglect of safety systems at the plant.
The arrival in Bhopal of American lawyers led to the filing of hundreds of lawsuits against the American parent company, Union Carbide Corporation (UCC), in the United States. The Indian Parliament passed the Bhopal Act, designating the Government of India (GOI) as the exclusive representative of the victims. The GOI brought filed suit in US federal court on April 8, 1985. The many American cases were consolidated for pre-trial proceedings in the federal district court for the Southern District of New York. The case was assigned (by lot) to Judge John F. Keenan, at the time a relatively junior judge. Union Carbide moved to dismiss on grounds of forum non conveniens—i.e., that the case could more appropriately be tried in India.
The Court allowed discovery on matters limited to the question of where the case should proceed. The parties submitted briefs and supporting material and presented oral arguments. Judge Keenan granted the defendant’s motion to dismiss subject to some conditions, which Union Carbide accepted after modification by the Court of Appeals.
The case was re-filed in India in the District Court in Bhopal on Sep. 5, 1986. On Dec. 17, 1987, that court ordered preliminary compensation of Rs. 350 crores (then equal to about 25 million dollars). Union Carbide appealed to the High Court of Madhya Pradesh, which affirmed the order for preliminary relief, with modifications, reducing the amount of Rs. 250 crores. UCC then appealed to the Supreme Court of India. In February 1987, while the appeal was pending in the Supreme Court, UCC and the GOI reached a settlement, under which UCC paid the Government of India $480 million in dollars.
The GOI set up tribunals to determine the compensation to be paid to claimants. The tribunal process extended over more than 15 years. Because the value of the Indian rupee fell from roughly 13 to the dollar in 1987 to 45 to the dollar in 2004, the GOI ended up having a considerable residue (over $300 million) after paying the victims. In 2004 the Supreme Court ordered the remaining funds to be paid out pro rata to all those who had been compensated.
Many in India remain convinced that the culprits were let off too easily in light of the comparatively low damages payment and the absence of UCC’s chairman, Warren Anderson, from the trial that convicted his Indian subordinates.

Sunday, November 6, 2016

A new metaphor for Magna Carta and property - Part II: A new metaphor for property

The second post by Paul Babie on Magna Carta and the Forest Charter (the first post is here):
Green Man (13th Century), Bamberg Cathedral, Germany
© 1992 Clive Hicks (reproduced with permission)
At the outset of Part I, and of my article, quite intentionally, but without comment, I placed the image of a medieval forest; it is a visual representation of lands as they might have been at the time of Magna Carta. It captures, at least partially, Magna Carta’s legacy for property centered, one way or another, in the individualist-absolutist story.

We have heard this individualist-absolutist story told repeatedly, over a very long time: property as choice structured to suit the interests and preferences of the individual, with that power of choice and control protected against all others, including the sovereign. It has become, more than anything else, a metaphor for the liberal conception of property; the same conception that the Supreme Court adverts to and relies upon again and again, just as Chief Justice Roberts did most recently in Horne. The image of the medieval forest represents, visually, that metaphor. While romantic, that image is misleading and false.

The metaphor of Magna Carta as individualist-absolutist property misleads and is false because it represents only half the story—the other half is told by the Great Charter’s lost sister, the Forest Charter. Without the Forest Charter’s story, a necessary dimension of the freedom and liberty of property—the obligation towards others and towards the community—is neglected. The Forest Charter forces us to find a new metaphor, one that represents the dual stories of property as both individualist-absolutist and as community-obligation. This Section suggests replacing the metaphor in the form of an image that would have been very familiar to Kings John and Henry III, to the barons who forced their hand, and to most other people alive at the time that those kings set their seals upon Magna Carta and the Forest Charter: it is the image of the Green Man.

Sunday, October 30, 2016

A new metaphor for Magna Carta and property - Part I: Magna Carta and two stories of property

Today we have the first of two guest posts (the second is here) by Paul Babie of Adelaide Law School on Magna Carta and the Forest Charter (for my own post on the topic see here - DS):
A Medieval Forest
(Gaston III, Count of Foix, Livre de Chasse (1387))
Many thanks to David Schorr for asking me to write this Guest Blog, based upon my article ‘Magna Carta and the Forest Charter: Two Stories of Property (What Will You be Doing in 2017?)’ 94 North Carolina Law Review 1431 (2016). In this post, I have removed the citations—these can be found in the original article.

In mid-2015, an interesting exchange took place in the United Kingdom House of Lords. On June 4, Baroness Miller of Chilthorne Domer put this question to the government:
To ask Her Majesty’s Government whether they will mark the 800th anniversary in 2017 of the granting of the Charter of the Forest in a similar way to that in which the Magna Carta is being marked this year.
And on June 18, Lord Faulks answered:
The Charter of the Forest was an important document in its own right when it was issued by Henry III in 1217 at the same time as a re-issue of Magna Carta. The Charter re-established rights of access to the forest for free men that had been eroded over the time. However, although the provisions of the Charter of the Forest remained in force for a number of centuries, it has not enjoyed the same lasting and worldwide recognition as Magna Carta, which has had an enduring significance on the development of the concept of the rule of law. Consequently, while the Government is actively supporting the celebration of the 800 anniversary of Magna Carta this year, it has no plans to mark and celebrate the 800th anniversary of the Charter of the Forest.
At one time, the “Charter of the Forest” or the “Forest Charter” enjoyed a status equal to its indispensable partner, Magna Carta. Indeed one could not be understood without the other and the failure to remember this fact, either now or in 2017, leaves impoverished our understanding of Magna Carta’s legacy. Why?

Friday, October 28, 2016

Environmental history in oral arguments

Brian Tomasovic recently posted the abstract for his article "Soundscape History and Environmental Law in the Supreme Court", published last year in Environmental Law. The abstract:
Today’s technology unleashes new, digitized information resources with immense scale and speed. This Article examines one such resource — the archive of audio recorded proceedings of the United States Supreme Court — appraising, for the first time, its value to those who study and practice environmental law. From hundreds of hours of audio across six decades, a history of environmental litigation sounds forth, imparting rich lessons on advocacy, judicial reasoning, and the role of the Court in environmental law’s development. The Article organizes itself in three major parts, furnishing insights on: oral advocacy in the environmental docket; the voices from the bench; and the audience for prospective engagement with any selection or subset of recordings. Serving partly as a listener’s guide, the Article defines the reach of environmental litigation in the audio archive and demonstrates its unique value as a tool for learning and the professional betterment of environmental law scholars and practitioners.
Tomasovic explains that argument audio hosted on the Supreme Court’s website presently begins with the October 2010 Term, while recordings going back to 1955 are at the Oyez website. The article's Appendix B "compiles the list of available oral argument recordings for more than three hundred Supreme Court cases where environmental protection or natural resource concerns were at stake", and also "labels, using keyword tags, the identity of these settings under the rubric of the environmental burdens, risks, or amenities at issue in each case".

Is this resource important? Tomasovic thinks so; here are some highlights from my perspective (footnotes omitted). I'll start with his treatment of environmental history as reflected in the recordings:

Monday, October 24, 2016

All the elements of tragedy were there

(courtesy Old Merthyr Tydfil)
Friday marked the 50th anniversary of the horrific Aberfan disaster, in which a mountain of coal waste buried part of the Welsh town, killing 28 adults and 116 children. (The title of this post is a variation on the refrain from Keidrych Rhys's poem, "Aberfan: Under the Arc Lights", quoted by Prince Charles at the commemoration ceremony.) As the New York Times reports:
At the inquest, when a child’s cause of death was listed as asphyxia and multiple injuries, one father famously said: “No, sir. Buried alive by the National Coal Board. That is what I want to see on the record.”
Iain McLean has done some interesting work on the policy lessons of the disaster, including some legal ones:
The legal framework for corporate manslaughter already existed in 1966. The managing director of a local firm had been prosecuted in 1965 for allegedly instructing a welder to cut up a disused river bridge starting in the middle. The welder had done so and was drowned when the bridge collapsed. The prosecution failed because it could not prove that it was the managing director who had given the order. But two of the counsel who subsequently appeared before the Aberfan Tribunal had also appeared in that case, with reversed roles. The prosecuting counsel in 1965 was counsel for the National Coal Board at the tribunal. The defence counsel in 1965 was counsel for the teachers' unions (who had lost five of their members) at the tribunal. Why then did they not consider the possibility of prosecution of the NCB? Partly because the idea was too mind-stretching; partly because it is always difficult, in a large organisation, to prove that a directing mind (mens rea) was behind a piece of criminal negligence. The Law Commission recommended in 1996 that a specific offence of corporate killing should be introduced. The Labour Party accepted this proposal and put it into its 1997 General Election manifesto. It still has not been implemented. This may be ascribed to corporate lobbying....

Monday, October 17, 2016

Environmental regulation in colonial Zimbabwe

The latest Environment and History has an article by Muchaparara Musemwa, "Sic utere tuo ut alienam non laedas. From Wanton Destruction of Timber Forests to Environmentalism: The Rise of Colonial Environmental and 'Sustainability' Practices in Colonial Zimbabwe, 1938-1961". The abstract:
This article examines the roots of colonial Zimbabwe’s culture of environmentalism – described, here, as increasing social awareness of the rapid deterioration of the environment and the pressing need to take decisive action to counteract it. It argues that only a one-sided story – namely colonial conservationist discourses and practices especially as they pertained to African reserves in colonial Zimbabwe and other parts of Southern and Eastern Africa – has been the object of myriad historical analyses. Yet, there is a corresponding story that seems to have fallen between the seams of history as it is rarely articulated in Zimbabwean historiography in a systematic and comprehensive way, i.e. the origins of a colonial environmentalism – one focused more on reinforcing white settlers’ sustainable uses of natural resources and less on Africans. It chronicles how the once verdant landscapes of colonial Zimbabwe were transformed into near waste in the first four decades of colonial occupation from 1890; highlights how the diverse voices of environmental concern that appeared at the time compelled the colonial Zimbabwean state finally to institute the Commission of Inquiry into the Preservation of the Natural Resources of the Colony of Southern Rhodesia in 1938; and examines how this Commission’s recommendations became the basis for the establishment of a number of institutional regulatory systems to initiate an efficiency-oriented approach to the management of the colony’s natural resources. It highlights how the notion of ‘sustainability’ was infused into the Commission’s Report and became such a powerful trope that it laid the basis for subsequent institutional and legal environmental resource management in colonial Zimbabwe, surviving intact into the first two decades of postcolonial rule. The article further explores how the farmer–miner conflict unfolded beyond the McIlwaine Commission and how the Natural Resources Board finally led to a successful resolution of the conflict in 1961. The McIlwaine Commission Report attests to rising social and environmental concern at the ongoing ecological decline of the colony’s resources, resulting in the realisation of a resolute response in order to guarantee the sustainability and welfare of white settler society.
L. F. Hughes, Back Page, Umtali and the Eastern Districts of Southern Rhodesia (1953)

Wednesday, October 12, 2016

A historical understanding of emissions standards and ambient standards

courtesy Ohio Citizen Action
A recent article by Craig Oren in the Environmental Law Reporter shows how history can help us understand current issues in environmental law.
The article is a response to an argument by Richard Revesz and Jack Lienke in their book Struggling for Air "that there was a tragic flaw in the Clean Air Act (CAA) Amendments of 1970: the 'grandfathering' of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment." They "trace the flaw to the actions of Sen. Edmund Muskie (D-Me.), sometimes called the father of the CAA. Senator Muskie chaired the Subcommittee on Air and Water Pollution of the U.S. Senate Committee on Public Works, the subcommittee with legislative jurisdiction over the CAA. In the authors’ view, Senator Muskie and the U.S. Congress missed the mark by not requiring that existing power plants meet national emission standards." (For more on Muskie, see here.)
Oren's article shows how a familiarity with the legal (and political) context in which the law was enacted is necessary for understanding it's contours, still very much with us today. Some excerpts (footnotes omitted):
The philosophy behind the [CAA] was that air pollution sources should be regulated according to the harm they did to health rather than on the basis of what control technology happened to have been developed for the category of source. Thus, the 1970 Amendments established emissions standards for new cars that were based not on what was achievable, but on what was thought necessary to protect the public health. In this way, the amendments were “technology-forcing”—they mandated that the auto industry do what was needed. The stationary source provisions came out of a similar approach: a desire to make industry invest in developing new ways to control air pollution control.
To accomplish this, the 1970 Amendments called for EPA to promulgate national ambient air quality standards (NAAQS) at levels that would protect public health and welfare, and required that states develop for EPA approval state implementation plans that would bring areas with excessive air pollution into attainment—that is, compliance—with these standards. For the health-based standards, the plans had to demonstrate that areas in violation would come into attainment—within three years. If the sources did not do what was needed to meet the standards, they could be forced to clean up or be shut down.... While there would be national emissions standards for hazardous air pollutants such as carcinogens, these standards would be based on what was needed to give ample protection to public health and welfare, not on what was feasible to do.
But in one respect—new stationary sources—the Act adopted a technology-based approach. If regulation of sources were based exclusively on what was needed to achieve the air quality standards, then areas with clean air would have an advantage in attracting and keeping industry over those that did not. This, Nixon Administration witnesses testified, would undercut efforts to establish tough emission standards for new sources in dirty-air areas by shifting new sources to clean-air areas. This “site-shifting” would as a practical matter destroy air pollution abatement efforts by making them politically unpalatable, particularly to labor unions in urban areas that wanted to prevent plants from abandoning the Northeast for the South as the textile industry had done.

Sunday, October 9, 2016

French forest law

The latest American Historical Review has a review by Jeff Horn of Kieko Matteson's Forests in Revolutionary France: Conservation, Community, and Conflict, 1669–1848 (Cambridge UP, 2015). Horn writes:
Matteson is at pains to demonstrate that over the long term, “peasant communities and practitioners of customary rights” retained “significant control over their forests” “through tenacity, wiliness, and sheer violence” (xv).
In an introduction, six long but fast-moving chapters, and a lengthy epilogue, Matteson considers the relationship of states, various types of property owners (such as seigneurs), and communities to forests, their management, and their economic exploitation.... Conservation is a major theme, particularly its intellectual foundations in Enlightened natural philosophy that Matteson refers to as a “formative period in the development of French environmental discourse and conservationist policy” (50). These ideas are then traced across subsequent regimes. Shifts in state oversight of the forests, mostly negative, form the spine of this book. Jean-Baptiste Colbert’s 1669 forest ordinance is at the heart of the first chapter, the “failure” of the changes made by the Revolutionaries in 1789–1791 is the focus of chapter 4, and the background and reception of the Forest Code of 1827 are the subjects of chapters 5 and 6.
Matteson makes three main arguments. First, she asserts that “peasant opposition to state forest policies produced greater gains than previously appreciated, even when it was crushed at the time.” Matteson also claims that the French environmental conservation had less to do with ecology “than with extending state power, suppressing sedition, and substituting commercial exploitation for communal utility.” Third, she maintains that “local, community-based arrangements for the management and use of natural resources … have been unfairly maligned, both in the historiography of the Revolution and in contemporary policymaking” (10–11).... 

Thursday, September 29, 2016

When loggers were green

The Forest History Society awarded its 2016 Blegen Award for the best article on forest and conservation history to Erik Loomis for his "When Loggers Were Green: Lumber, Labor, and Conservation, 1937-1948", published in Western Historical Quarterly.

Soleduck Falls shelter, Olympic National Park, constructed 1939
(M. Stupich, courtesy of National Park Service, Pacific Northwest Region)
The IWA was a strong supporter of the creation of the park for protecting old-growth forest

There's a lot of law in the article, though the union was often on the losing side. The opening paragraphs:
In April 1939, Harold Pritchett, president of the International Woodworkers of America (IWA), went on radio station KIRO in Seattle to explain his union’s program for forest conservation. Pritchett bluntly attacked the timber industry for its wasteful practices, noting, “under the present policy of timber destruction three feet of Northwest timber is being used for every new foot being grown.” Saying the nation’s forests were too important to serve corporate masters, Pritchett demanded a government-led reforestation program that would hire unemployed loggers and recharge the timber resource. He argued for federal policies mandating selective logging rather than clear-cutting large patches of forest. Pritchett justified federal intervention by comparing it to the New Deal’s expansion of government authority into public utilities and banking as well as the passage of the Social Security Act. Only through “initiating a forest program that is based on the needs and also the responsibilities of the forest land owners” under “federal control of forest cutting practices,” Pritchett declared, could the forests of the Northwest remain productive for future generations.

Sunday, September 25, 2016

Economics and property rights in the Gold Rush

I just came across a review that I wrote and submitted a while ago for the Business History Review on Mark Kanazawa's Golden Rules: The Origins of California Water Law in the Gold Rush (U. Chicago Press, 2015). I had thought the editors would inform me when it was published... Anyway, here's what I wrote:
There's still gold in them thar hills. A century and a half after the torrent of gold-seekers to the California Sierras dried up, the flow of historical studies of the development of property rights on the gold frontier continues unabated. This work of detailed scholarship by Mark Kanazawa, an economic historian who has published extensively on water law in the western United States, is the latest entry into the auriferous regions.
Romance and adventure aside, economic and legal historians, along with property theorists, have been drawn to the California gold rush for two main reasons. First, the development of “codes” in the mining camps of the forty-niners provides a colorful case study of the institution of a system of law from scratch. Because government presence and state law were thin on the ground in gold-rush California, the ability of the miners to institute working systems of norms seems to serve as a historical example of successful private ordering. Beyond this, scholars of water law have taken a particular interest in the laws of the diggings, as the system of private rights in water that applies to this day in much of the western United States, known as the appropriation doctrine, is thought to have originated in the gold fields. So miners’ laws have received quite a lot of attention in studies hoping to explain how legal order spontaneously emerged out of chaos and why the miners abrogated the common-law regime of “riparian rights” in water (in which all landholders adjacent to the water source shared it) in favor of appropriation, based on the principle of “first in time, first in right.”
Golden Rules takes an economic approach to understanding the origin and evolution of water law in the California mining region in the decade or so following the discovery of gold at Sutter's Mill. After several substantial introductory chapters laying out the history of California gold mining and the ditch industry that developed to provide the water used in increasingly large and sophisticated mining operations—as well as the economic theories of property and tort he believes explain the historical development of the law—Kanazawa gets down to his analysis in detail. Chapter 5 examines the water rules adopted in the mining camps, arguing that they generally did a good job of promoting mining at an efficient scale. Chapter 6 discusses how economic forces gradually pushed disputes over water from the informal mining camp system to the official courts of the state. Chapter 7 argues that the appropriation doctrine as it developed in the California gold fields was economically efficient. Chapters 8 and 9 turn to legal issues often ignored in both gold rush histories and the legal history of water—the regulation of water quality and damage caused by bursting dams—arguing that with regard to these, too, California law provided efficient solutions.

Tuesday, September 13, 2016

Commissioners of Sewers and early modern English administrative law

sign in Redwick, Monmouthshire (courtesy geograph)
A couple of years ago we noted the publication of Philip Hamburger's controversial Is Administrative Law Unlawful?. Paul Craig recently posted a paper refuting much of Hamburger's historical argument about the supposed lack of administrative law in early modern England, "The Legitimacy of US Administrative Law and the Foundations of English Administrative Law: Setting the Historical Record Straight". One section deals with the Commissioners of Sewers, and as it's relatively short, I'll reproduce it here (leaving out some of the footnotes):
Sidney and Beatrice Webb began their account of the Commissioners of Sewers [p 13] by noting the difficulty faced by the twentieth century observer in appreciating just how much of England had been composed of vast fens and marshes. Therein lies the explanation for the early attention given to drainage and defences against the sea, leading to the Statute of Sewers 1531, which gave statutory foundation for the Commissioners of Sewers and the Courts of Sewers. They resembled in many respects justices of the peace for the counties, albeit with a specialized jurisdiction over rivers, sewers, ditches, bridges, locks, weirs, sea defences and the like. Their jurisdiction was akin to that of a modern environmental agency. This analogy can be pressed further, insofar as the Commissioners of Sewers “combined in themselves, judicial, executive and even legislative powers” [Webbs, 21]. It is with the rulemaking powers that we are presently concerned.
The Statute of Sewers 1531 authorized Commissioners of Sewers to undertake flood defences broadly conceived, and gave them extensive powers to fulfil this remit. They could make individual decisions concerning repairs that were needed to river banks, sea walls, streams, ditches, gutters and the like, and apportion the costs. They were also authorized to make rules. The Commissioners could use the laws and customs of Romney Marsh as a boilerplate, or devise provisions according to their own discretion. They could thus, "[M]ake and ordain Statutes, Ordinances, and Provisions from time to time, as the Case shall require, for the Safeguard, Conservation, Redress, Correction, and Reformation of the Premisses, and of every of them, and the Parts lying to the same, necessary and behoful, after the Laws and Customs of Rumney Marsh in the County of Kent, or otherwise by any Ways or Means after your own Wisdoms and Discretions."
This rule-making capacity was extensive. The 1531 Statute stipulated that the Commissioners’ rules remained effective for the tenure of their office, which at that time was three years, but were ineffective thereafter. This temporal limit was, however, subject to an exception, whereby the rules could retain their binding force if they were “made and ingrossed in Parchment, and certified under the Seals of the said Commissioners into the King's Court of Chancery, and then the King's Royal Assent be had to the same.” 

Friday, September 2, 2016

National parks in the Netherlands

Wolff en Hoeck in de Purmer: Jan van der Heijden (1678) (courtesy SKBL)
Over at Environmental History Resources, Jan Oosthoek recently posted "Cultured nature: The Nature Scenery Act of the Netherlands", based on his podcast interview with Wybren Verstegen, whose article, "The Nature Scenery Act of 1928 in the Netherlands", was published last year in Forest History Today. There's also a video. Oosthoek writes:
When thinking of national parks most people think of famous examples like Yellow Stone and Yosemite in the United States or the Serengeti in Tanzania. These parks are large in scale with an emphasis on wild life conservation and the preservation of scenic landscapes. Human activity and presence are restricted and regulated and people are visitors.
In smaller and densely populated countries like Britain or the Netherlands, the creation of large national parks is complicated. In these countries landscapes are far from natural and humans are part of the fabric of the landscape. For this reason, it is difficult to restrict human access and activities to create national parks.
In the Netherlands nature and human activity are almost inseparable because about half of the country is at or below sea level and is reclaimed or drained. Consequently, the landscape of the Netherlands is mostly the product of human intervention and can therefore be described as a cultural artefact. As a result, formal protection of landscapes and wildlife came late. One of the early attempts to create protected conservation areas came in 1928 with the Natuurschoonwet, freely translated as Nature Scenery Act. This Act was mostly about protecting country houses set in park like settings.
As Oosthoek himself notes in the video, even in the US park landscapes are far from natural. But, as anyone who has visited parks in the US and in Europe knows, there is a big difference in the degree to which parks aspire to a wild or "natural" aesthetic on the two continents, with European parks tending to distinguish far less sharply than their American counterparts between nature and culture.

Friday, August 12, 2016

Environmental views on the US Supreme Court

A year ago we noted Jed Purdy's review of Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014). Now we have Anthony Penna's review of the same in Environmental History. An excerpt:
Jonathan Z. Cannon’s Environment in the Balance argues that the majority of the Supreme Court’s decisions regarding environmental legislation reflected a struggle between competing and conflicting beliefs and values. Environmental laws embraced “an ecological model of the world” (p. 1) that posits interconnections among humans and the natural world and seeks to protect it from potentially harmful human activities across place and time. In contrast, the Supreme Court’s conservative majority during the last forty years (highlighted by the appointment of Associate Justice Scalia in 1986) represented a different set of values and beliefs, stressing individualism, property rights, economic growth, and limited government.
It is difficult to imagine a more complete analysis of the Supreme Court’s conservative direction when interpreting environmental legislation. Chapter 2, “Environmental Law, the Court, and Interpretation,” provides the background for thirty selected cases from a group of 150 significant environmental cases decided between 1970 and 2014 and an interpretive guide for categorizing majority and minority positions. Chapter 3, “Environmental Urgency and Law,” reinforces the author’s thesis that the deep-seated beliefs and values of justices inform their decisions when interpreting environmental laws.
Chapter 4, “Law for the Environmental Other,” explores the Court’s findings when the rights of the other conflicts with human use and benefit. In cases in which species protected by the Endangered Species Act, 1964 and the Marine Mammal Protection Act, 1972 were litigated, the Court rejected arguments that reflected Aldo Leopold’s ecocentric perspective.
In Chapter 5, “Efficiency,” Cannon notes that from 1972 to 2007 the Court resisted using cost-benefit-analysis in environmental and worker safety statutes. 

Wednesday, August 10, 2016

More on Indian treaties

"Salmon Fishing at Chenook", James G. Swan,
in The Northwest Coast; Or, Three Years' Residence in Washington Territory, 1857
Yesterday we posted on Indian treaties in the northeastern US (and Canada); today it's the Northwest. Michael Blumm recently posted "Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration". The abstract:
In 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute. 
Some two decades later, in 2007, the tribes and the federal government convinced district judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting wholesale the state’s allegations. This article discusses the reasoning of both the district court and the Ninth Circuit and makes some assessment of the road ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity.

Tuesday, August 9, 2016

Squirrels, bears, and treaties

Black Squirrel, Stirling Ontario (Robert Taylor)
Loren Michael Mortimer recently posted at Early Canadian History on bear and squirrel migrations across the St. Lawrence River in the late 18th century:
In September of 1759, great armies were on the move through the upper St. Lawrence Valley. Not the military forces under the command of Montcalm and Wolfe en-route to their climactic showdown on the Plains of Abraham, but an army of black bears migrating en-masse southward from Canada into Britain’s Atlantic colonies. During that autumn, newspapers from New England and New York recorded a southern migration of bears, accompanied by an equally mysterious appearance of thousands of black squirrels. Bears were reported in the city of Boston for the first time in a century—a large bear “the size of small cow” was shot on a Boston wharf as it swam across the harbor from Dorchester Neck.
Bears were “spreading mischief” on colonial farms from the New England frontier to the lower Hudson Valley, devouring fields of “Indian corn” and destroying stocks of hogs, sheep, and calves. British army officers bemoaned frequent bear sightings near General Jeffery Amherst’s field headquarters on Lake Champlain. Newspapers printed lurid tales of a bear attacking and eating two children as they picked beans in a field in Brentwood, New Hampshire. One bear reportedly attacked a female colonist walking near her house, but only made off with the “hind part” of her gown. As much as these armies of marauding bears and squirrels vexed Anglo-American colonists, they provided a critical windfall for indigenous hunters residing beyond New England in the Canadian borderlands and the vast St. Lawrence watershed to the north. 
There's a legal angle to this, as well:

Thursday, August 4, 2016

Merchants of Doubt - the prequel

(courtesy The Age of Change)
Oreskes and Conway's Merchants of Doubt shined a light on how industry employed scientists in recent decades to cast doubt on the reality of environmental and health problems like smoking and climate change. An article by Andrew Perchard & Keith Gildart in last year's Labor History, "'Buying brains and experts': British coal owners, regulatory capture and miners’ health, 1918 – 1946", shows that this problem has been around for a while. The abstract:
This article examines British coal owners’ use of medical and scientific knowledge of occupational lung diseases in the mining industry to resist regulatory changes between 1918 and 1946. It explores the strategies deployed by coal owners in response to scientific and lay debates over the hazard to workers’ health presented by dust, and legislation to compensate miners for pneumoconiosis and silicosis contracted in the nation’s collieries. In particular, it investigates coal owner deployment of the views of notable scientists, especially the eminent physiologist John Scott Haldane (1860–1936), who insisted on the harmlessness of coal dust, in order to avoid costly compensation payments, as well as capital investment in ameliorative measures to reduce miners’ exposure to such hazards. In so doing, the article provides new insights by illustrating how coal owners influenced mining education programmes, deploying the arguments of Haldane and others, with direct implications for health and safety in British mines. This contributed to the mounting public health disaster wrought by coal dust on Britain’s mining communities. This process is viewed as part of the broader political activities of the coal owners – and their industry body, the Mining Association of Great Britain – in its attempts to influence the regulatory process in a period of dramatic change in the political economy of coal.

Sunday, July 31, 2016

Water pollution regulation in 1909

Last week This Day in Water History reproduced a 1909 article from Municipal Journal and Engineer, "Stream Pollution in America", according to which state authorities were very active in prosecuting violations of water pollution regulations. Some highlights:
The Ohio State Board of Health has been asked to investigate 18 complaints under the act prohibiting stream pollution, and has ordered sewage disposal works to be installed in four of the cities before Jan. 1, 1910. The constitutionality of the law under which they act has been questioned, but if decided in their favor they hope to prevent the pollution of all the streams in the State.
In Maryland many of the larger towns maintain sewage disposal plants, but about 120 restraining orders have been issued against municipalities and corporations during the past year on account of stream pollution. 
Indiana’s new anti-pollution law, passed this year, forbids the pollution of streams, its enforcement being in the hands of the State Board of Health. 
The blog comments: "The important thread that runs through most of the state reports is that pollution of waterways was prohibited by state law. However, we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored."
"The Governor of Maryland Accompanying the Sewerage Commission
 and the Chief Engineer on a Tour of Inspection through the Outfall Sewer"
 (courtesy Water and Me)

Thursday, July 28, 2016

More zoning history: the Federal government, Herbert Hoover, and sprawl

In honor of zoning's 100th anniversary, John Nolon has been posting a multi-part series on the history of zoning at Land Use Prof Blog (see here at the bottom of the page). Some highlights from the first couple of posts (here and here) on the interplay between local, state, and national legislation:
Cities are not sovereign entities; they get their legal authority from the state. New York City’s zoning law, for example, was enabled by a 1914 act of the state legislature, which amended the City’s Charter to authorize it to control land use. Twenty state legislatures, plus the District of Columbia, followed suit by adopting some form of zoning enabling act by 1921.  In other states, many localities rushed to adopt zoning laws in the absence of state authority, risking invalidation due to their lack of legal authority. The need for enabling acts in all states and for a uniform and effective method of delegating control of land use to municipalities led to the promulgation of a model zoning enabling act by a national commission in 1922.
Although the federal government has limited power to regulate local land uses, it has an important role to play in enabling, guiding, and assisting local governments to exercise their delegated power wisely. Zoning’s story illustrates the powerful influence that the federal government can wield if it plays this facilitative role strategically.  In the case of zoning’s adoption, the story involves the federal Department of Commerce.
As Secretary of Commerce under presidents Harding and Coolidge in the 1920s, Herbert Hoover paved the way for the rapid adoption of zoning. Hoover noted “Our cities [do] not produce their full contribution to the sinews of American life and national character” and these “moral and social issues can only be solved by a new conception of city building.”  His response was to appoint two advisory committees: one to write a standard building code and another to draft model zoning and planning statutes to be adopted by the states, in their discretion. 

Tuesday, July 26, 2016

Zoning's 100th anniversary

To mark the 100th anniversary of what New York's 1916 zoning ordinance, arguably the world's first, yesterday's New York Times carried an article by David Dunlap, "Zoning Arrived 100 Years Ago. It Changed New York City Forever." The article argues that it was not the completion in 1915 of the Equitable Building, taking up a whole city block, without setbacks, that was responsible for enactment of the law, as agitation for such regulation had been brewing for some time:
“The time has come when effort should be made to regulate the height, size and arrangement of buildings,” George McAneny, the borough president of Manhattan, declared in a 1913 measure establishing what amounted to a zoning committee.
Regulations, he wrote, were needed “to arrest the seriously increasing evil of the shutting off of light and air from other buildings and from the public streets, to prevent unwholesome and dangerous congestion both in living conditions and in street and transit traffic, and to reduce the hazards of fire and peril to life.”
He and Edward M. Bassett were the chief architects of the 1916 Zoning Resolution.
Under its rules, buildings in strictly residential zones were permitted to rise only as high as the streets in front of them were wide; a ratio of one to one, put another way. (Side streets in Manhattan are typically 60 feet wide.)
These “1” zones cover most of the oversized maps in a portfolio titled, “Height / July 25, 1916,” that the City Planning Department still keeps. They are relics now, since the 1916 Zoning Resolution was superseded in 1961.
Also visible on the maps are “1¼” zones, “1½” zones, “2” zones and, in Lower Manhattan, a “2½” zone, where buildings could rise without setback for two and a half times the width of the street that they fronted. 

Carl Weisbrod, is the director of the City Planning Department and chairman of the City Planning Commission, is quoted as crediting the ordinance's authors with creating 
a revolutionary document couched in accepted common-law and constitutional doctrines: that landowners are not entirely free to create nuisances to those around them; and that local governments may police conduct in the name of public health, safety and welfare. 
“So much of this was to get the courts to feel comfortable that this was a natural and obvious use of the police power,” Mr. Weisbrod said, “when what it really was a dramatic change.” 

Monday, July 25, 2016

City smoke ordinances

The Library of Congress webpage The Evolution of the Conservation Movement, 1850-1920 has quite a bit of legal material from the period:
The collection consists of 62 books and pamphlets, 140 Federal statutes and Congressional resolutions, 34 additional legislative documents, excerpts from the Congressional Globe and the Congressional Record, 360 Presidential proclamations, 170 prints and photographs, 2 historic manuscripts, and 2 motion pictures.
There are some unexpected treasures here, for instance Samuel Flagg's 1912 booklet, City Smoke Ordinances and Smoke Abatement, published by the Bureau of Mines (see title page below). The website explains:
Although concern for the effect of human environmental activity on human welfare did not move to the center of what is now called the environmental movement until the 1960s, the turn-of-the-century conservation movement did include something contemporaries referred to as "human conservation:" an attempt to improve the quality and quantity of human life, particularly in the nation's burgeoning urban centers, through attention to certain kinds of environmental management, particularly technological intervention. Within this framework, engineers, scientists and public policy-makers sought to determine how natural resources, such as mineral fuels, could be used with both maximum efficiency and minimal detriment to the human environment. This brief survey by the U.S. Bureau of Mines provides a concise and systematic overview of contemporary anti-air-pollution efforts as reflected in the smoke-abatement ordinances of cities throughout the country, and prescribes the essential characteristics of ordinances appropriate for municipalities of different sizes. An Appendix reprints actual ordinances from Chicago, Pittsburgh, Des Moines, Milwaukee, Los Angeles, and Boston by way of example. It should be noted that the problems caused by urban smoke are defined (p. 8) in terms of economic waste, damage to buildings, loss of light, dirt, and injury to vegetation, but not as a direct threat to human health.
For more environmental law treatises of the period, see here. For more on smoke regulation, see here and here.

Thursday, July 21, 2016

Gender discrimination in the commons

Marco Casari and Maurizio Lisciandra recently posted "Gender Discrimination in Property Rights: Six Centuries of Commons Governance in the Alps". The abstract:
Starting from the Medieval period, women in the Italian Alps experienced a progressive erosion in property rights over the commons. We collected documents about the evolution of inheritance regulations on collective land issued by hundreds of villages over a period of six centuries (thirteenth-nineteenth). Based on this original dataset, we provide a long-term perspective of decentralized institutional change in which gender-biased inheritance systems emerged as a defensive measure to preserve the wealth of village insiders. This institutional change also had implications for the population growth, marriage strategies, and the protection from economic shocks.