Monday, September 25, 2017

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. 
The Consiglio dispute was only one of many cases in which lawyers for Pacific Legal Foundation locked horns with the California Coastal Commission on behalf of individual property owners, businesses, or municipalities. Their litigation campaign eventually produced a landmark decision by the U.S. Supreme Court, influenced the legal and environmental policies of the Reagan administration, and inspired other policy-oriented litigation by right-leaning lawyers. Their efforts are often understood in the context of environmental politics, as one part of a much-larger campaign by “business” interests to increase profits by rolling back environmental regulations. (After all, Pacific Legal Foundation was bankrolled, in part, by construction companies and real-estate developers, who had a clear interest in the outcome of its litigation.) But the conflict between Pacific and the Coastal Commission was about more than just dollars and cents or business and the environment. It was also a legal and constitutional conflict over the meaning of property and the growth of the regulatory state in late twentieth-century America, which was gradually reshaping both American liberalism and American conservatism.
The conflict over property rights and the regulatory state proved particularly intense in California. With its spectacular ocean-front cliffs and legendary beach culture, the Golden State offered particularly compelling reasons for aggressive—even radical—efforts to preserve the natural character of the coastline and public access to the shoreline. California regulators—especially members of the Coastal Commission—were willing to risk legal and political challenges to make sure they defended those qualities, before it was too late. California also had a significant network of well-connected, pro-business Republicans, who were able to work collectively to take on the regulators. Their experience soon offered conservatives around the country a model for challenging liberal government in the courts, provoked a debate within conservative policy circles over government “takings” and the regulatory state, and helped inspire future campaigns for “economic liberty.” The intensity and urgency of California’s land-use battles ensured that they reached the courts—where they could ultimately influence legal doctrine and policy agendas far from the Pacific Coast.
And from the conclusion:
The California Coastal Commission was a product of that state’s distinctive coastline and rapid twentieth-century population explosion. But it was also a product of an American liberalism that, by the 1970s, focused increasingly on “post-materialist,” quality-of-life concerns, distrusted traditional electoral politics, and saw environmental protection in terms of preservation of and access to areas of pristine beauty. Scholars can debate whether that particular shift was a particularly good thing for liberalism, its major electoral constituencies, or even for the environment. (In recent years, some analysts have wondered whether restrictions on growth in the temperate coastal areas of California led to increased suburban sprawl in the sunbaked, inland regions of the state, where heavy use of air-conditioning and long, automobile-based commutes contribute to global climate change.) But that does not change the reality that most of the commission staff, not to mention most Californians who cared about its work, understood the commission as a local agent of American liberalism. For that reason, its policy choices—including what powers to use and how to employ them—further developed the California and national liberal tradition.
Likewise, California’s coastal battles helped define the conservative response to the new social regulation in public policy and the courts. In responding to the perceived nightmare scenario of unaccountable bureaucrats using the police power to undermine traditional rights and create “social property,” Pacific Legal Foundation helped embed a notion of economic liberty in the conservative policy agenda. These new property-rights enthusiasts usually ignored the many ways that restrictive zoning rules and land-use regulations could help affluent, Republican-leaning communities. (Though restricting new development can hurt the property values of people who want to build new structures, it can boost the property values of people who plan to keep things as-is—which may be one reason that Pete Wilson never feared an electoral backlash over his support for the Coastal Commission.) And they put the defense of free markets and traditional property rights ahead of any communitarian concerns about neighborhood stability or public order. On the rocky outcropping she purchased but never developed, Viktoria Consiglio could see the vast expanse of the Pacific Ocean. Her lawyers could see an opportunity to shape the agenda of U.S. conservatism by redefining the relationship between individuals and government, private property and the state. 

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