Cottages as public nuisances

More on public nuisance: Maureen Brady recently posted "Cottages as Public Nuisances: The Long History of Land Use Regulation of the Poor", forthcoming in Depaul Law Review. The abstract:

In the Fourth Book of his Commentaries on the Law of England, in a chapter entitled “Offenses Against the Public Health, and the Public Police or Oeconomy,” William Blackstone sited his discussion of “common nuisances.” Although many things on this list of what we now call public nuisances are familiar—blockages of public roads, disorderly saloons, trades emitting offensive smells or sounds—one stands out. Blackstone described as a typical nuisance the erection of “cottages,” going on to discuss and even criticize the situation of these dwellings alongside uses like fireworks and the keeping of hogs in close quarters.

Blackstone, Washington DC

The aim of this Essay is to examine Blackstone’s discussion of cottages in context, endeavoring to use it toward two ends. The first is to better understand the concept of public nuisance and its limits. As others have chronicled, there has been a renaissance in interest in the tort in recent years, spurred on by multimillion dollar litigation invoking it in contexts ranging from the opioid epidemic to climate change. Here, I engage in a close reading of Blackstone’s passage and its citations, examining why cottages were regulated as public nuisances in the first instance and how that history connects to broader developments in English (and later American) law and society. As it turns out, cottages bore a closer relationship in many ways to public nuisance “classics,” like road blockages and certain public health risks, than it might at first appear.

The evolution of US NOx standards for cars

Dan Farber at Legal Planet recently posted on "Cars, Smog, and EPA". An excerpt:

For the first 20 years of federal regulation, Congress set the NOx [nitrogen oxides] standards for new cars itself. That’s quite different from the standards for industrial pollution sources, which Congress has always delegated to EPA. The reason may have been the high political stakes in the car industry or the relatively easier task of setting standards for new products in a single industry using a single energy process.

East River and Manhattan Skyline in Heavy Smog (Chester Higgins, Jr., EPA, 1973)

... The initial standard, set in the 1970 Clean Air Act, was 3.1 grams per mile (gpm) for NOx. Achieving that standard was thought to be nearly impossible when Congress created this mandate, but the mandate forced the car companies to make technological breakthroughs with catalytic converters.

Note that the standard is set in terms of pollution per mile rather than pollution per gallon. That means that any increase in fuel efficiency automatically helps a company meet the pollution standards as well. Theoretically, a car could have no pollution control at all but get such phenomenal mileage that it met the pollution standard. Actual mileage has improved but not enough to obviate the need for pollution controls.

Congress adjusted the standards twice. A 1977 amendment reset the limit to 1 gpm in 1981. The 1990 amendments changed the standard to 0.6 gpm, effective in 1994. These are called Tier 1 standards. Apparently Congress did not relish the task of periodically resetting the standards itself  The 1990 Amendments authorized EPA to set standards for 2004 and beyond.

*****

This has to be considered a successful regulatory program. The Biden proposed standard  [of 2023] allow less than 1% of the pollution levels that Congress mandated in 1970.

Water access and historical redlining

Charles W. Sterling III recently published "Connections Between Present-Day Water Access and Historical Redlining" in Environmental Justice. The abstract:

Although challenges in water and sanitation access are often assumed to be issues of low- and middle-income nations, more than 400,000 homes in the United States still lack access to complete indoor plumbing. Previous research has demonstrated that the remaining plumbing challenges are more prevalent in communities with high Black and Brown populations. This study hypothesizes that the 1930s practice of redlining by the Home Owners' Loan Corporation (HOLC), which systematically denied loans to minority populations, is linked to present-day inadequate plumbing access (i.e., defined as incomplete plumbing above the national average). Digitized HOLC maps for 202 urban areas across the country and U.S. Census data from the 2016 to 2020 American Community Survey were combined to interpolate the modern-day plumbing access for historical neighborhoods (n = 8871 communities). Analysis via binomial logistic regression demonstrated that nationally, redlined communities (HOLC Grade “D”) are significantly more likely to have a rate of incomplete plumbing above the national average compared with greenlined communities (HOLC Grade “A”) (0.1352; confidence interval = ±0.036). This finding was also observed for three of the nation's four census subregions (Northeast, Midwest, and West). Slight differences by region in relationships between the proportion of specific racial/ethnic populations on rates of incomplete plumbing demonstrate the need for targeted place-based interdisciplinary examinations of exclusionary practices. The demonstration of the present-day impacts of redlining after nearly 90 years emphasizes the need to intentionally mitigate past injustices to ensure modern-day equity.

Water rights and forest regulations in the Charter of the Escartons (1343)

The Grand Charter of the Escartons

I was fortunate to be able to spend some time this summer along the Guisane River, in the area formerly known as the Dauphiné, today in southeastern France. The river is notable for its old canals, still in use, and the surrounding mountain slopes are covered in forest. It turns out this landscape has an interesting legal history.

In 1343, Humbert II, the last Dauphin of Viennois (before that title passed to the kings of France and was used for the heir apparents to the royal throne), confirmed the rights of the people of the Briançon region in the "Grand Charter of the Escartons", effectively creating a sort of autonomous republic free of feudal obligations that survived, with its rights confirmed by the Kings of France, until the French Revolution. Two articles caught my eye (my translation from the French translation by Fernand Carlhian-Ribois):

Art. XVII  : The people of Briançon now have the right to build canals to water their land, take water from torrents and rivers without having to pay the right of use either to the Dauphin Humbert or to his heirs and successors.

Art. XVIII  : It is forbidden for the officers, Dauphins and Nobles to cut timber or firewood in the forests of the Communities of Briançonnais, Queyras, Vallouise, Césane, Oulx, Pinet, Chevalette, Fontenils, or other places in the Baillage, because the cuts are the cause of floods, landslides and avalanches. This prohibition is perpetual. 

Article 18, with its early recognition of the connection between deforestation, erosion, and flooding, is interesting for its popular environmentalism, blaming the environmental degradation of the mountain region (a theme that became prominent again in the nineteenth century; see. e.g., George Perkins Marsh's Man and Nature) on the feudal rights of the nobility, and abolishing those rights forever. 

And I wonder what the effect of Article 17 was on riparian conflicts. Said Guisane River is full of canals (see photo below) leading off to mills on the riverbanks and then returning the water downstream. While family members were enjoying rafting the stream, I was imagining the conflicts between riparian owners and public users that must have resulted from the many dams and diversions. Local legal records must be full of such riparian conflicts, and I would think that Article 17's right to take water free of charge must have complicated the issue.