Beach access and American conservatism

Bixby Creek Bridge near Big Sur, California
(Bill Lane Center for the American West)

The issue of public beach access has played a major role in the history of environmental law (see, e.g., here, here, and here). It also may be responsible for some of the backlash against environmental regulation. Last year the Journal of Policy History published Jefferson Decker's "Pacific Views: Property Rights, the Regulatory State, and American Conservatism". The article opens:

In November 1976, a bookkeeper named Viktoria Consiglio used money from an inheritance to purchase a plot of land overlooking the Pacific Ocean just south of Carmel, California. Two years later, Consiglio and her husband prepared to build a one-bedroom house for use during their retirement. They submitted applications for a building permit only to have their request denied. The impediment was the California Coastal Commission, a statewide regulatory agency that Californians had recently established in order to protect the state’s coastline from environmental damage and overcrowding. The commission ruled that Consiglio’s house would block the view of the ocean from a nearby highway, disrupt a path to a rocky cliff above the sea, and reduce public access to the beach below the development site. Using powers that had been delegated to it by the state legislature, the commission denied Consiglio’s application for a building permit. Consiglio could continue to own this scenic property overlooking the Pacific Ocean, but she would not be permitted to build a home there.

Consiglio eventually sought help from the Pacific Legal Foundation, a nonprofit, “public-interest” legal foundation established in 1973 by Ronald Zumbrun, a former aide to California governor Ronald Reagan, with help from several prominent California lawyers and businessmen. Zumbrun’s organization photographed the gray-haired woman, standing on a rocky cliff overlooking the Pacific surf, and put the image on the front page of its bimonthly newsletter. The accompanying article, titled “What Happened to the American Dream?” began: “Viktoria Consiglio, unhappy, confused, and angry, wonders what happened to her dream of owning a home by the sea. A dream that has turned into a nightmare of government red tape and legal costs that have taken a big chunk of her income from her job as a clerk-bookkeeper.” Lawyers at the foundation prepared to file suit, on the grounds that the Coastal Commission’s decision was inequitable, unjustified by law, and interfered with the woman’s property rights. The state of California may have certain powers to zone or plan for new development, the foundation argued, but it could not render this woman’s property nearly useless to her. 

Explaining the Persistence of 'Command-and-Control' in US Environmental Law

That's the title of a paper recently posted by Daniel Cole. The abstract:

Economists and legal scholars have known for decades that "economic instruments," including cap-and-trade regimes and effluent taxes, can reduce emissions at lower cost than command-and-control regulations. Yet, the US system of environmental law remains heavily dominated by command-and-control. How can we explain this remarkable persistence?

This paper considers three alternative explanations: (1) path-dependency; (2) public choice theories of interest-group politics; and (3) social-welfare/economic efficiency. Using examples, mainly from the US Clean Air Act, the paper finds that none of the three alternatives offers a sufficient and complete explanation of the persistence of command-and-control. But all three contribute significantly to a comprehensive explanation.

Hurricane Irma, Marco Island, and wetlands protection

Marco Island in 1964 (left) and present day (Michael Coleman)

Slate recently published a piece by Henry Grabar, "The Lessons of Marco Island", on the Florida island that was savaged by Hurricane Irma last week and the legal history that enabled its development while protecting nearby wetlands. Some highlights:

Forty years ago, the consensus of the state and federal governments was that Marco Island should not have been built at all. The community was the setting for one of the biggest development controversies in the United States and nearly ruined one of Florida’s largest and most celebrated developers. In a region with a notorious building addiction, it became the site of the environmental movement’s greatest victory over the Florida growth machine. Ecological foresight halted millions of dollars in real estate development and all but ended an engineering technique that had turned the South Florida coast from swampland to resort.

*****

When brothers Robert, Elliott, and Frank Mackle discovered Marco in the early 1960s, half of its 10 square miles consisted of mangrove swamps. Home to just a few hundred people and an abandoned clam factory, it was the single largest undeveloped barrier island property in South Florida. 

*****

The plan called for 35,000 residential units, which would require displacing 18.2 million cubic yards of ground (more than 150,000 dump trucks’ worth), dredging the land into channels, and using the dredge to create development sites in the swamp. This method is common across South Florida; Cape Coral, a little to the north, is a good example. Still, at the time, Marco Island was the largest “finger-fill” waterfront housing project to ever come before the Army Corps of Engineers, Science reported in 1976.

Deltona's "finger-fill" development used dredging to transform swampland into canal-side residential plots
(Flip Schulke/US National Archives and Records Administration)

Environmentalism of the Rich

Public Books recently ran a review by Max Holleran of  Peter Dauvergne's Environmentalism of the Rich (MIT Press, 2016). Holleran writes that the book

traces the shifting tactics of mainstream environmentalism from the radicalism of the 1970s to the corporate partnerships of the 1990s, in which companies accomplished incremental changes through in-house consultations with groups like the Sierra Club. It details how many green groups began as firebrand protectors of the earth, deeply inspired by indigenous movements that opposed the sale and commodification of nature, but have since morphed into something akin to compliance departments for large companies.

*****

Green movements of the Global North and the Global South are markedly different; within that divide, unique national experiences have produced a variety of environmentalisms, some of which do not even use the name and prefer to align with indigenous rights or class-based movements. The 1970s environmental movement came of age during a time of decolonization, and many pioneers of the movement were allies of nations in the Global South seeking both political independence and more autonomy within the global economy. Dauvergne shows that most resource extraction has imperial roots, when European powers saw the wider world as a zone for the collection, and often pillage, of raw materials. The “green” decolonization movement was fundamentally anti-capitalist; it suffered when many Global North environmentalists chose to advocate for a green economy, rather than a new economy based on rethinking global trade.

Holleran writes that the book argues that increased environmental awareness has not necessarily translated into increased regulation. Rather,

Forest law and constitutional change

Rata forest on on Enderby Island

Earlier this year André Brett published "A Sudden Fancy for Tree-Planting? Forest Conservation and the Demise of New Zealand's Provinces" in Environment and History. The abstract:

New Zealand provides a valuable case study of the relationship between colonial statecraft and forest conservation. This article explores the connections between Premier Julius Vogel’s Forests Act of 1874 and the abolition of New Zealand’s provinces in 1876, locating conservation within the broader context of popular discontent with provincialism. It argues that previous perspectives have either downplayed or exaggerated the significance of conservation to provincial abolition, and that the relationship between the two was complex and uneven. Abolition profoundly affected conservation, but the stimulus for abolition had been gathering elsewhere even as conservation shaped its timing.

Water law in medieval Lombardy

"Diploma" of Frederick Barbarossa granting navigation rights to the monastery of
San Carpoforo di Como (1159)

I recently came across Acque della Lombardia Medievale, apparently the catalog for an exhibition held by the Biblioteca Ambrosiana di Milano in 2015. (If you're ever in Milan, don't miss the associated Pinacoteca Ambrosiana.) The editors, Federico Gallo and Rita Pezzola, write:

According to Roman law, one defines every permanent water-course as "publicum" whether it was navigable or not, and only rivulets and streams were considered private. During the Middle Ages and in particular in the 10th and 11th centuries, we find more and more imperial and royal diplomas giving grants and donations related to stretches of rovers: they refer to the construction of ports and mills and to fishing and navigating rights. Thus the principle, or better the custom, of considering some parts of a river as capitalized (today we would say "privatized") was established, and more and more we find that the water-course was at the disposition - more or less in their possession - of the people who owned the adjacent land. During the Dieta di Roncaglia (Piacenza) in 1158, Federico I, called Barbarossa - assisted by lawyers from the school of Bologna - redefined the legal status of rivers. Referring to Roman law, the Emperor inserted the "flumina navigabilia" in the regalie (royal prerogatives), so that the "flumen publicum" no longer referred to permanent water-courses, but only to the navigable ones.

For a similar development in 19th-century Canadian water law, see here.

Transboundary governance

Murray Clamen and Daniel Macfarlane recently posted "The International Joint Commission, Water Levels, and Transboundary Governance in the Great Lakes". The abstract:

This article provides a historical background of the evolution of transboundary water governance and environmental diplomacy in the Great Lakes–St. Lawrence basin, with a focus on the International Joint Commission (IJC), during the twentieth century. This study focuses on water quantity issues, such as diversions, canals, hydroelectric developments, control works, and water levels, revealing the range of  artificial and natural impacts on water levels in the Great Lakes–St. Lawrence basin. Doing so provides for a revealing examination of the IJC, which has traditionally been the main forum in which Canada and the United States manage their environmental relations and border water issues, which allows for an engagement with a range of North American transboundary governance theories. While the IJC is often lauded as a model of transnational environmental cooperation, this paper demonstrates that the evolution of this bilateral institution up to the 1960s is more complicated.

From Charlottesville to Yosemite

The Ahwahnee Hotel in 1980 (George Rose)

Daniel Duane has an interesting piece in yesterday's New York Times on genocide of the Yosemite Valley's natives and the replacement of their names with Anglo ones, and it all starts from a trademark dispute. After detailing the killing and renaming of places in Yosemite carried out by California militia, Duane explains both the legal dispute and the complexity of the name issue:

The recent furor over the name of the Ahwahnee began in 2015, when a subsidiary of the Delaware North Corporation, which operated the park’s hotels, restaurants and shops for more than two decades under a government concession contract, lost its contract to Aramark (no tragedy there — the burgers were criminal). The government says Delaware North quietly registered the trademarks for the names on the hotel and the other places and is now demanding payment for their use. The National Park Service came up with new names and told Delaware North to get lost. Now there’s a federal lawsuit.

I dearly hope Delaware North loses, but I also hope that the National Park Service sticks with the new names, however ridiculous — and, while they’re at it, changes dozens of others. My vote would be to change Tenaya Lake to Pywiack Lake, relabel Yosemite Valley itself Ahwahnee and sprinkle the park with new historical plaques saying things like “On this spot, in 1851, American militiamen shot Tenaya’s son in the back, let him bleed out in the grass, then dragged Tenaya up to have a look and enjoyed watching him weep.” 

Social justice and the historical development of water rights

Jill Robbie blogged this week at the University of Glasgow School of Law's blog, exploring connections between her work on the history of Scottish water law (see her Private Water Rights, 2015) and my own on the history of the appropriation doctrine in the western US. Jill writes:

In The Colorado Doctrine, David investigates the historical development of the prior appropriation doctrine of water rights, commonly associated with the western states of America. The traditional view of the evolution of this doctrine is that the riparian rights doctrine of the eastern states, which entitles all landowners along a river to reasonable use of the water, was unsuited to the arid climate of the west. Therefore, a “first in time, first in right” system of water rights was created under which rights are obtained through use and earlier users are preferred to those coming later. The water rights are severable from landownership and transferable. For some law and economics scholars, the evolution of the prior appropriation doctrine is explained due to the high value of water in the dry climate and the necessity of a private property regime to ensure maximum utilisation of this valuable natural resource. As a result, the history of prior appropriation is often used as evidence of the superiority of private property over a common property regime for scarce resources.

David challenges this traditional view by digging deep into archival material from the mid to late 19th century in Colorado. Using this material, he shows that the ideology prevalent in 19th century western America was stanchly set against speculation and corporate ownership. The development of prior appropriation, where water rights are restricted by actual use and made transferable was, David argues, motivated by principles of distributive justice rather than economic efficiency and wealth maximisation. Due to this finding, David argues that property regimes are often more nuanced and complicated than a strict distinction between private property and commons. He shows that the prior appropriation theory in Colorado grew from a system of public property and provided private rights to water which were transferrable in order to try and ensure as wide a distribution of rights among actual users as possible.

The findings contained in The Colorado Doctrine have interesting parallels in Scotland. The water rights regime in Scotland developed between the mid 17th and mid 18th centuries. Advocate, judge and jurist, Lord Kames was at the centre of this development and established the theory that as water is among the res communes, or communal things, it is outwith ownership and open to all humankind. Everyone has a right to appropriate a portion of water. If a landowner diverted a river, this would be depriving those downstream of their public right to appropriate the water and landowners were therefore prohibited from diverting the rivers running through their lands. This obligation on landowners was then developed by the courts into a correlative right held by landowners against any interference with the flow of a river. Landowners are allowed to take water for primary purposes, such as drinking, washing and cooking, but no other interference with the material flow is allowed. David’s argument regarding the inaccuracy of a strict divide between common and private property regimes is therefore demonstrated by the Scottish regime which derives from a system of commons but with the result that no one is entitled to use water for secondary purposes, such as agricultural or industrial purposes, unless they obtain agreement from the landowners along a river or they are in the position of having a river wholly contained within their own land.