French planning law

The French journal Revue d'histoire des Facultés de droit et de la culture juridique recently published a collection of articles on the occasion of the 100th anniversary of "la loi Cornudet", the 1919 French statute on urban planning (known by the name of the legislator who initiated it). The papers are based on those delivered at a conference at the Sorbonne in 2019.

As the French law was roughly contemporaneous with salient American planning and zoning laws and the English Town Planning Acts, it would seem that there should be ample room for fruitful comparative and transnational research. I hope someone takes up the challenge!

Paris development plan of 1934

Historical Analysis in Environmental Law V: What is to be done? Police, public health, statutory nuisances, planning and zoning, labor law, and literature

In the last post in this series I suggested looking at the histories of commons regulation, forest law, and 'police' to better understand the historical roots of modern environmental law. Before moving on to note several other relevant areas of historical law, I would like to note that while critics (most recently Markus Dubber) have impugned police for its broad discretion and patriarchal foundations, these very elements were powerful enablers of environmental regulation in the public interest. Moreover, the opposing tradition that Dubber identifies—the Enlightenment ideal of the 'rule of law'—has often used the liberal ideal of private property to frustrate public-minded environmental regulation. In any case, police regulations, with their wide remit and geographic dispersion, are natural places to look for sources of modern environmental law. Noga Morag-Levine has indeed made the connection between early modern 'science of police' and later regulation of air pollution, but it is likely that 'police' was—for better or worse—a fertile source of much more of environmental regulation than we yet realize.

An important sub-set of police regulation was the public health law that grew up in the Victorian age as a response to the urbanization and industrialization of the period, giving expression to the sanitary movement's concern with the effects of environmental degradation on human health and welfare, particularly of the working classes. Public health statutes, bylaws, regulations, and licenses regulated issues such as smoke pollution, industrial odors, and sewage disposal. This highly developed area of law could be investigated for its influences on later environmental law, including its emphasis on technical solutions to pollution problems and the division of labour between central and local regulation that continue to characterize the field. Public health law is also likely responsible for the creation of a bureaucracy of professionals with expertise in the health and engineering aspects of pollution that would form the core professional staff of modern environmental regulators.

Associated with public health law in the Anglo-American world was the law of statutory nuisances. Statutory nuisances allowed for private and public administrative and criminal enforcement of prohibitions on various forms of pollution and encroachment on the public domain, and thus are a likely source of much modern environmental law. Moreover, this area of law may be a source of the prevalent confusion over the role of nuisance law in the pre-1970 area. It may be true that 'nuisance law' was the dominant vehicle for environmental regulation in this period; yet the category of 'nuisance' included not only a common law variant (private and public, the latter of which could be criminally prosecuted), but also statutory nuisance, with its explicit prohibitions on specific types of environmental harms and risks, such as discharges of pollution into water sources and emissions of 'noxious vapours'. If the law of nuisance one imagines is the private, common law of nuisance usually thought of, modern environmental legislation might indeed seem to represent a major revolution. If, on the other hand, statutory nuisance is given its due, the environmental legislation of the 1970s may look more like an elaboration of existing law.

Charles Wilkinson

Robert Fischman recently posted "Wringing Wonder from the Arid Landscape of Law". The abstract:

Charles Wilkinson

Charles Wilkinson’s estimable contribution to public land law scholarship is widely cited but only partly understood. From the mid-1970s to the mid-1980s he upended the field by elevating the diffuse public interest, displacing creation and adjudication of private property interests as the field’s focus. However, his subsequent scholarship grappled with an even more important challenge that has been far less noted. Beginning in the late 1980s, Wilkinson explored how legal institutions should determine the pluralistic, public interest. In trailblazing articles and books, he rose to the challenge with site-specific details, compelling narratives, and aspirational themes. This work undermined the dominance of exogenous preference accounting as a means of identifying the public interest. Instead, often employing methods from the humanities, Wilkinson promoted planning as a deliberative, value-shaping process for crafting resource management objectives. His scholarship of the past thirty years redefined the relevant inquiries for public land law scholarship. In particular, he established bioregionalism, time, culture, and wonder as place-building concepts essential for translating justice and equity into public natural resources decisions.

Preserving Austrian Forests—and More

“Sustainability is the key principle”—that’s how Bernhard Mittermüller describes the great Austrian Forest Act of 1975 in my latest video, “Preservation Waltz.” Mittermüller teaches at the University of Natural Resources and Life Sciences in Vienna, fondly known as BOKU, and he was kind enough to speak with me for this latest addition to my series about Austrian conceptions of law and the Austrian experience of landscape (discussed previously on ELH here and here).

One of the things that intrigued me during my Fulbright stay in Austria was the way that many of its modern, progressive legal concepts grew out its monarchical past, and they bear traces of that royal origin. In Austria, the echo of monarchy is everywhere, including in jurisprudence.

That’s certainly true of the legal concept of environmental sustainability, which now is enshrined in Austrian constitutional law as a national aspiration. Ironically, the regulation of Austrian forests today grew from the efforts of early modern archdukes and prince bishops to protect the woods because of the critical role wood played in the mining industry. This form of environmental protection involved a forceful assertion of power over the local population.

Even more deeply, the regulation of forests in Austria is inextricable from the development of the modern state as a whole. Whereas in England, the first use of the term “common law” was as a contrast to the law of the forest, in Austria the growth of the national approach to law and governance was based in a meaningful degree on the regulation of  the woods, as the spirited legal historian Martin Schennach of the University of Innsbruck explains.

And so the beauty of the well-tended Austrian landscape, which today forms the life-blood of the tourist economy on which the nation depends; the restriction of private autonomy in relation not only to environmental resources but as a general matter of Austrian social life; the progressive vindication of an ideal of the public good; and the social hierarchy of the Mandarin administrative apparatus which took the place of royal authority—all were of a piece in the formation of Austrian identity. And these links can be perceived, and caught on film, shimmering and hovering about everyday Austrian life.

The video isn’t only about the protection of the forests. It’s called “Preservation Waltz,” and it also meditates on the principles of sustainability, community, and order in two other fields involving law and wood. The first area is Austrian domestic architecture, discussed by Karim Giese of the University of Salzburg, which prizes harmony and uniformity as a form of cultural sustainability. Construction law in Austria is guided by the same resistance to market liberalization present in Austrian forest law.

The second area is the preservation of books (made from paper, derived from wood). The video indeed is structured around a conversation with Renate Schönmayr, director of the University of Salzburg’s law library, which I hope playfully links its look at forest and construction law with larger cultural themes about what it means to conserve, safeguard, and study the past.

Want to learn more about Austrian forests and forest law? Here a link to an English-language section of the Austrian forest ministry. Here is the English translation of the Austrian forest report of 2015. And here is the contemporary, amended forest legislation in German. And here is the video:

Landscapes of my youth

Sligo Creek

I have fond memories of a hot, humid summer, when I turned 7, collecting tadpoles and algae in the Northwest Branch of the Anacostia. As an even younger child my favorite weekend activity was to ride the miniature train around Pine Lake, and as a teenager my friends and I spent endless hours biking and walking along shady Sligo Creek. I was thus happy to see this under-appreciated corner of the world (the multicultural and middle-class east side of Montgomery County, Maryland is overshadowed by the more glamorous, western neighborhoods of Bethesda, Potomac, and environs) receive some attention in an article, "The Social-Ecological Resilience of an Eastern Urban-Suburban Watershed: The Anacostia River Basin", authored by Craig Arnold and four others. The abstract:

This article develops a new framework -- the institutional-social-ecological dynamics framework (ISED) -- to assess the relationships among institutional change, societal change, and ecological change in evaluating the current and likely future resilience of a small, Eastern, urban-suburban watershed: the Anacostia River watershed in DC and Maryland. A historical case study of the watershed explores the transformations of the watershed across key thresholds, including how legal, governance, and social institutions changed since European colonization and how these changes have affected the ecosystem functioning and social dynamics in the basin. Major drivers of change are identified, including the potential for climate change impact on the watershed and 3 possible futures for the watershed, ranging from hydro-ecological collapse to a greening of the watershed. Finally, watershed governance in the basin is evaluated to determine whether it is adaptive to change. The necessary features of adaptive governance in this particular basin, include watershed-focused governance, restoration and green infrastructure, land use regulation, public engagement, social justice, and monitoring and feedback loops. Law and planning play critical roles in all of these features. Whether the basin will continue to develop and improve its emerging elements of adaptive governance remains to be seen, but several key variables to watch are identified.

Requiem for Regulation

Garrett Power recently posted "Requiem for Regulation", published recently in Environmental Law Reporter. From the article:

By the 1970s, most students of government had come to agree... that American society needed more and better planning. According to the consensus viewpoint, free markets no longer had the answers for the overcrowded cities, stressed natural environments, and acute social problems. The national government needed to take command over water and air quality, and state and local governments needed top-down federal aid. All three levels of government must follow the example set by the social democracies of Western Europe and put in place regulations that would plan for a better society. American governments had the constitutionally requisite powers. State and local governments were vested with a “police power” to promote “public health, safety, morals, or general welfare.” The federal government was vested with a more specific power to “regulate Commerce . . . among the several States.” Any new regulations however, might deprive some private owners of their property rights and might deprive some capitalists of their “investment-backed expectations.” And the U.S. Constitution prohibited all governments from “taking” private property or “impairing” contract rights. The Constitution even more sharply curtailed the regulatory power of the national government to matters of interstate trade. When would bold new plans for a Great Society not run afoul of the Constitution?

*****

By the three-quarter mark of the 20th century, a remarkable set of Supreme Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. The Court had given the regulators wide discretion.

Zoning map of Euclid Village, Ohio, at issue in Village of Euclid v. Ambler Realty Co. (1926),
 a leading case on the constitutionality of land use regulation

After discussing a number US Supreme Court decisions, Power goes on:

Post-Penn Central, there appeared to be no real obstacles—political or constitutional—to the creation of a well-planned, pollution-free society. Congress established national standards for “clean air” and “clean water.” When the Nixon Administration’s federal land use initiative was left in the lurch by President Richard Nixon’s resignation as he faced impeachment, state governments undertook their own “quiet revolution in land use control.” State laws addressed the complex problems of reallocating responsibilities between state and local governments. At the local level, detailed zoning maps had been supplanted by development agreements. Negotiations between the local jurisdiction and the landowner contractually fixed the terms and conditions upon which projects may go forward. The developer was contractually guaranteed project approval, while the locality benefited from customized performance standards and assurances that infrastructure demands would be met.

But things changed under the Rehnquist and Roberts courts:

During the first two-thirds of the 20th century... the “judicial liberalism” in [US Supreme] Court precedents had created a living Constitution that changed with the times. The Justices took it upon themselves to balance public benefits against private losses and approved bold government plans for a better society. But in the years since then, the Court’s judicial conservatives have sometimes shown renewed determination to curtail governmental activity in general, and to limit federal, state, and local planning in particular.