Public rights and standing

Owen Smitherman has posted "History, Public Rights, and Article III Standing", forthcoming in the Harvard Journal of Law and Public Policy. The abstract:

For decades, legal academics have complained about a conflict between history and the doctrine of Article III standing. First in Spokeo v. Robins (2016) and then notably in TransUnion LLC v. Ramirez (2021), Justice Clarence Thomas presented a halfway resolution. Thomas grounded Article III standing in a historical distinction between private and public rights. Suits for violations of private rights would require no showing of concrete injury-in-fact. Suits for violations of public rights would require the showing of special damage, a term borrowed from the public nuisance tort.

This Article questions this effective retention of injury-in-fact for public rights actions. In Part I, I explain Justice Thomas’s nuanced approach to Article III standing. In Part II, I investigate old English and early American materials on special damage to flesh out the meaning of Thomas’s requirement for public rights standing. I find a lack of historical consensus on the content of the special damage standard. Some materials go this way, others go that way, and still others another way. The materials do not align on a precise standard, making it difficult, either as a matter of 1788 original meaning or later liquidation, to operationalize Thomas’s special damage requirement. In Part III, I argue that there are good reasons to doubt that the requirement of special damage is constitutionally relevant to the original meaning of Article III. The Framers did not discuss special damage in relation to Article III. The traditional rationale for the specific damage requirement does not have constitutional significance. And it seems implausible that the Constitution incorporated a legal doctrine in such flux without textual indication. In conclusion, I critique the current Court’s lack of attention to original meaning for Article III standing.

Justice Thomas (Stetson University)

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.

Class and conservation

Recently published in the American Journal of Legal History is William B Meyer's "Class, Conservation, and the Police Power in the American Gilded Age: The Origins of Lawton v. Steele". The abstract:

The leading police power case of Lawton v. Steele, decided by the US Supreme Court in 1894, offers insight into the question of judicial class bias during the decades following the Civil War. Conflict arose in rural northern New York State over restrictions on livelihood fishing by nets imposed to protect sport angling by affluent tourists. Opposition to the restrictions was grounded in a producerist worldview and class consciousness. The matter reached the courts in a challenge to state laws permitting the summary destruction, without legal process, of nets placed illegally. Seemingly prohibited by the Fourteenth Amendment and previous case law, such destruction was upheld by a Supreme Court divided along ideological lines, correlating with the justices’ Whig or Jacksonian antecedents. The dissenters, those of Jacksonian sympathies, argued unsuccessfully against the challenged laws.

Winslow Homer, Adirondack Lake (Blue Monday) (1892)

The conservation constitution

A recent issue of Perspectives on Politics has a review by Richard Andrews of Kimberly K. Smith's The Conservation Constitution: The Conservation Movement and Constitutional Change, 1870–1930 (University Press of Kansas, 2020). Andrews writes that while existing works on the history of US conservation policy "focus on the policies expressed in statutes and regulations and on the actions of the administrative agencies, with only limited mention of the legal and constitutional arguments that were battled out in the courts", Smith's book "provides a valuable new complement to these studies by presenting a far more detailed history of the legal and constitutional arguments presented to and ultimately decided by the courts during the period from 1870 to 1930". Andrews continues:

Smith’s primary aim, well summarized in the final chapter (pp. 254ff.), is “to explain how lawyers and judges reworked constitutional doctrine to accommodate the expansion of state power over the natural environment during the Progressive era; and more specifically, how legal decisionmakers conceptualized the natural environment, its relation to human society, and the public interests at stake to create the constitutional ‘common sense’ that federal and state governments have authority to protect natural resources and the integrity of ecosystems in the interest of future generations.” In the process, she discusses the interweaving of principles such as the public trust doctrine, the police power, public nuisance doctrine, parens patriae standing, the interstate compacts clause, and federal constitutional arguments based on the interstate and foreign commerce, property, war, treaty, spending, and eminent domain powers, as well as the interstate nuisance doctrine. She argues that even though many of these issues continue to be argued in the modern era, the sheer number of these constitutional foundations, once accepted by the courts, has ultimately made governmental environmental management authority strongly resilient to challenges. She also urges greater recognition of the roles of skilled lawyers and judges, along with the better-known politicians and citizen advocates, in achieving this stronger role for the state in environmental conservation. Finally, she notes the continuing need for further evolution of our understanding of the Constitution: the Progressive understanding did not address the distributive imperfections of environmental regulation, nor the implications of administrative processes for procedural justice, nor—perhaps most problematic today—the absence of effective capacity for national economic and environmental planning, particularly in international cooperation to address global environmental challenges such as climate change. 

 After some minor criticisms, Andrews adds: 

Early American history and modern American environmental law

A recurring theme in scholarship on environmental regulation is the roots of the American approach to environmental regulation, and to what extent this approach is exceptional. 

April's issue of Studies in American Political Development has an article in this vein by David Brian Robertson, "Leader to Laggard: How Founding Institutions Have Shaped American Environmental Policy". The abstract:

The U.S. led the world in environmental policy in the 1970s, but now lags behind comparable nations and resists joining others in tackling climate change. Two embedded, entwined, and exceptional American institutions—broad private property rights and competitive federalism—are necessary for explaining this shift. These two institutions shaped the exceptional stringency of 1970s American environmental laws and the powerful backlash against these laws that continues today. American colonies ensured broad private rights to use land and natural resources for profit. The colonies and the independent state governments that followed wielded expansive authority to govern this commodified environment. In the 1780s, Congress underwrote state governance of the privatized environment by directing the parceling and transfer of federal land to private parties and of environmental governance to future states. The 1787 Constitution cemented these relationships and exposed states to interstate economic competition. Environmental laws of the 1970s imposed unprecedented challenges to the environmental prerogatives long protected by these institutions, and the beneficiaries responded with a wide-ranging counterattack. Federalism enabled this opposition to build powerful regional alliances to stymie action on climate change. These overlooked institutional factors are necessary to explain why Canadian and American environmental policies have diverged.

Water rights in the Mexican Supreme Court

Peter Reich recently posted an English-language abstract for his "Water Rights in the Mexican Supreme Court during the Postrevolutionary Era: 1918-1946":

This book chapter analyzes the Supreme Court of Mexico’s development of a “national waters” jurisprudence after the 1910-1920 Mexican Revolution through judicial review of amparo cases (challenges to official action). Although the Constitution of 1917 generally defined bodies of water within the country’s boundaries as property of the nation, the Court had to apply this provision to specific disputes between state or local bureaucrats and particular landholders for access control. Competition over springs, storm water, groundwater, drinking water, and infrastructure, as well as problems unique to communal resource ownership and petroleum exploitation, raised questions about how much the government could limit individual uses on behalf of the public. The author concludes that despite the dramatic ideological conflicts of the postrevolutionary period, the Supreme Court usually decided cases according to traditional property and evidence concepts regardless of political trends.

The full book chapter is in Spanish, but Reich is at work on a revised English version. We'll keep you updated.

Digital Library VI: The Laws of England Relating to Public Health (1848)

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's The Laws of England Relating to Public Health, published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law".

You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained. A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's reformist program--what Toulmin Smith called "empirical legislation"--were inconsistent with the English constitution, which (he argued) required regulation through the common law. (Compare Philip Hamburger's recent arguments in this vein.) So Toulmin Smith's work was more of an attack on contemporary environmental and health regulation than a treatise summarizing the law, as he explained in his Introduction:

The object of these pages is very simple. It is to show that the care, by law, for the public health, and for removing causes injurious to public health, is no new thing : that the law of England has ever had a most careful regard for all that concerns the public health: that the principles of the common law in reference to the matter are clear and decisive, and may be taken as models of what law should truly be in its regard for the welfare of the people. It is, further, to show that though, as manners and customs change with passing time, the machinery for carrying out certain principles of law into practice may be modified, those principles, based as they always are on national peculiarities, ought never to be neglected for the sake of introducing novel or speculative doctrines. Thus, it being a principle of the common law that any noxious accumulation is a nuisance which ought to be abated, it may be of little importance whether it be abated, in one age, by the bailiff of the court leet, or, in another, by the inspector of police; but it is of very great importance that new and theoretical remedies, interfering with numerous private rights and honest prejudices, should not be introduced and made compulsory.

The Common Law of England has been, in all ages, the great bulwark of the liberties of Englishmen. It is just in proportion as the principles of that common law have been neglected or superseded that those liberties have been endangered. And the people are bound to take care that, in the anxiety for sanatory improvement, no fresh invasion of those liberties do take place. For this purpose it is necessary that the principles of the common law be well known to the people themselves ;—and it is desired to be understood that these pages are addressed, for that purpose, to the general reader ; and that it has, therefore, been endeavoured to divest them of technical treatment.

It seems that Toulmin Smith's anti-regulatory agenda also made him something of a cholera skeptic:

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:

early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.

Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:

"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries." 

Historical analysis in environmental law I: Introduction

This past summer I noted that I posted a draft of my "Historical Analysis in Environmental Law" (on SSRN and Academia), forthcoming in the Oxford Handbook of Historical Legal Research, edited by Markus Dubber and Chris Tomlins. I believe there's still some time for modifications, so I'll post a series on it now, and hope some of you will have some helpful comments!

Environmental law has no history.

This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun, having emerged in the 1970s from the environmental crises of the preceding decade (such as the Cuyahoga River catching fire) and a contemporaneous sharpening of ecological consciousness (spurred, most prominently, by Rachel Carson's Silent Spring). Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history.

The general view of environmental law's history is that before circa 1970 environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Rather, it is taught, the environment was regulated through nuisance law—a system relying on private parties, or sometimes the government, bringing a lawsuit to enjoin environmentally harmful activities or obtain damages for environmental harm: "Prior to the explosion of environmental legislation in the 1970s, the common law was the legal system's primary vehicle for responding to environmental problems.... The common law relied largely on nuisance law doctrines to resolve environmental controversies..." (Percival et al, 63) Some look to this period as a lost golden age; others see it as having been a workable system for its time; while yet others condemn it as a failure.

This view of modern environmental law being created ex nihilo in a moment of crisis is, first and foremost, inherently implausible.

Water rights VI: A human right to water

(The final installment in the series on water rights:)

Alongside interest in public rights that trump the regular water rights of property law, there is much interest in private, human rights that do so. Many systems of water law have long recognized some right to basic water uses superior to other water rights. Islamic law's "right of thirst", the right to take water to quench one's thirst or to water one's animals, applies even to privately owned waters under most schools of Islamic jurisprudence (Caponera, 1954). Under the system of riparian rights, domestic or "natural" uses have preference over other uses (Beck, 2000), and domestic uses also have priority over other uses in most jurisdictions applying the doctrine of prior appropriation (Trelease, 1955). China's water law, too, exempts household and other small quantity uses (Wouters et al., 2004).

Recent years have seen an explosion of interest in the idea of a right to water framed in human rights terms. Scholars (e.g. Gleick, 1999) have argued that the right to the minimal amount of water needed to supply basic human needs is implicit in basic human rights norms, and an effort has been made to give this right more explicit, formal, legal recognition.

The Committee on Economic, Social and Cultural Rights of the United Nations' Economic and Social Council issued in 2003 its "General Comment No. 15"  on the right to water as anchored in the International Covenant on Economic, Social and Cultural Rights, stating (para. 2) that "the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses." The right to water was found to be anchored in the rights recognized by the Covenant to the highest attainable standard of health, adequate housing, and adequate food, as well as in the right to human life and dignity enshrined in the International Bill of Human Rights; other treaties, such as the Convention on the Rights of the Child, explicitly recognize a right to water. The general right to water was said by the Comment to include the right to maintain access to existing water supplies necessary for the right to water, the right to be free from arbitrary disconnections or contamination of water supplies, and the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water. Adequacy is measured by a number of factors, including the water supply being sufficient and continuous for personal and domestic uses, safe, physically and economically accessible, and provided without discrimination.

South African Constitutional Court

A prominent recent judicial decision on the issue was the 2009 ruling of South Africa's Constitutional Court in Mazibuko v City of Johannesburg. The South African Bill of Rights recognizes a right to "sufficient food and water" and that "The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights".

A colonial history of the River Murray dispute

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute". The abstract:

This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

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.

American regulation of water pollution

Water filtration plant at Lake Montebello, Maryland, 1915

This Day in Water History recently posted a Municipal Journal and Engineer article from 1909, "Stream Pollution in America", which surveys some of the state-level regulation of water pollution going on at the time. The blogger notes that "we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored", but I'm not sure the situation today is so different. Some excerpts from the 1909 article:

At a Conference of State and Provincial Boards of Health of North America, held in Washington last June, the Committee on the Pollution of Streams appointed last year presented a report in which it gave some data concerning the extent to which the pollution of streams was being regulated by the various States. Ohio, New Jersey and Kansas have, according to this report, passed laws during the last few years which ”are especially worthy of note as indicating advancement and the confidence which the Legislatures of these States must feel in these State Boards of Health.” From the reports of the secretaries of the Boards of Health of the several States they abstract a number of statements showing what is being accomplished by them.

*****

In New Jersey there are 54 sewage purification plants in operation or ready for operation by municipalities and large public institutions. The policy of that State is to allow no untreated sewage to be discharged from new systems into waters of the State. The Board of Health is also compelling municipalities to install purification plants on existing sewerage systems, and 22 are now under orders to cease pollution of the streams, these including all municipalities on the Delaware River.

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.  

500th post - Historical analysis in environmental law

This is the 500th post on this blog!

Though I've just finished a series based on an article of mine, this seems like as good an opportunity as any to mention a new piece I just posted, "Historical Analysis in Environmental Law", forthcoming in the Oxford Handbook of Historical Legal Research. It's particularly appropriate for this occasion, as working on this blog was extremely helpful to me both in getting a sense of the field and in bringing important work to my attention. So thanks to all of you writing in the intersection of environment, law and history!

Here's the abstract of the chapter, I'll probably do a series of posts later:

Environmental law has no history. This is not to say environmental law has no past; indeed, scholars are beginning to uncover its historical roots. What I mean by having no history is, first, that there is a general feeling, common to legal historians and environmental lawyers (particularly in the United States), that environmental law is something new under the sun. Modern environmental law lacks of connection both to earlier periods and to the great themes and trends of legal history. Environmental law has no history in a second, sense, too; it lacks history as a mode of argument or analysis. In legal cultures in which precedent and history are often what make a winning argument, the unavailability of historical analysis as a mode of legal discourse — as it is, for instance, in constitutional and property law (two fields in which environmental legal disputes are often entangled) — means that environmental values often are forced to retreat in the face of others. For these reasons environmental law needs both heightened historical analysis and a sense of its own historical roots. This essay aims to sketch current, possible, and desirable directions for future research into the history of environmental law. Before doing so, it notes a current scholarly pathology.

Lesser Ury, Siblings (1883)

Property in water and urban water supply

"New" Jersey City reservoir, c. 1880

Yesterday's This Day in Water History posted an interesting story on a 1919 fine handed down to Jersey City for using too much water, but both the original report and the commentary reflect some misunderstandings. The blog quotes an editorial on "Public Control of Water" from the Municipal Journal of June 14, 1919:

Water companies and departments have appealed to consumers from time to time to restrict consumption in order to avert a water famine in the city, and meters are used largely to prevent waste; but we believe it is something new to impose a penalty for excessive consumption. As told last week, Jersey City, N. J., has been fined by the state $22,285 for using from the Rockaway river more than the 100 gallons per day per capita which had been allotted to it. 

Forests and revolution in Mexico

After recent discussions of forests and revolution in France, we now turn to a similar topic in Mexico. H-LatAm recently posted Timothy Lorek's review of Christopher Boyer's Political Landscapes: Forests, Conservation, and Community in Mexico (Duke UP, 2015). Some highlights:

Boyer begins in the 1880s and follows the thirty-year reign of Porfirio Díaz and his embrace of foreign capital investment and scientific expertise, exercised by the regime’s cadre of científicos. The rapid acceleration of land titling (the so-called disentailment of communally owned property) and privatization of terrenos baldíos (unoccupied public land) and resources spurred the growth of commercial logging to meet the demands of the expanding newsprint industry and railroads. Observing the growing corporate commodification of timber resources, Boyer shows how members of the intellectual elite organized for conservation of the woodlands through a “regime of scientific management,” premised on similar initiatives in Europe and the United States (p. 30). Chief among these early conservationists was Miguel Ángel de Quevedo, whose long career in public policy withstood political transitions and revolution. Quevedo and the early forest service viewed conservation as a scientific and rational practice best orchestrated by urban Mexico City elites rather than the inhabitants of the woodlands themselves. What little consideration his urban foresters did give to rural peoples such as the Rarámuri of Chihuahua or the Purépecha of Michoacán, Boyer argues, was to criticize them as backwards, wasteful, and an impediment to rational management.

Chapters 2 and 3 chart the rise of “revolutionary forestry.” A rich historiography exists on the Mexican Revolution (1910-17) and on the subsequent agrarian reform which continued until 1992. Article 27 of the constitution of 1917 cleared a path for two legal channels for securing land rights: the restitution of communal land (restauración) or the granting of parcels (ejidos) of public land for usufruct use (dotación). And yet, Boyer points out, few scholars have noted Article 27’s significance in mandating the state’s right to manage natural resources on behalf of the nation. This charge led to the postrevolutionary state’s partnership with Miguel Ángel de Quevedo and his determined application of rational conservation in forestry. Yet Quevedo and other conservationists’ preferences for a state-regulated management bureaucracy complicated indigenous land rights supposedly protected under the postrevolutionary state’s social agenda. For example, the Forest Code of 1926 required ejido and native communities to form producers' cooperatives whose timber harvests were guided by scientific management plans approved by the new forest service. Other elements of the code, such as the ban on hatchets for felling, had the arguably unintentional effect of restricting native access to cutting timber in favor of commercial operations. As Boyer shows, the new bureaucratic hurdles presented challenges for ejidatarios and native villagers in Chihuahua and Michoacán, who struggled to assert their rights over unscrupulous outsiders and, when that failed, resorted to clandestine logging and the black market. 

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)

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.

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?

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.”