Compensatory mitigation and neoliberalism

Restored perennial and season marsh and riparian forest
at Wildlands Mitigation Bank, Placer County, California (EPA)

The always interesting Dave Owen recently posted "The Conservative Turn Against Compensatory Mitigation", whose primary subject is the recent turn described in the article's title (compensatory mitigation is a policy that require parties receiving permits for environmentally harmful activities to compensate for them by improving environmental conditions elsewhere). Owen also has something to say about the origins of the practice, rejecting the arguments of critics who have portrayed compensatory mitigation as part of a neoliberal, capitalist resurgence:

The proponents of compensatory mitigation reform hardly ever identified their efforts as measures to boost the capitalist system. As one retired departmental employee explained to me, even during the Reagan Administration, debates about compensatory mitigation were driven more by conflicts over regulatory intensity and states’ rights rather than by Milton Friedman-style market ideals. And later reformers’ key goal was to strike a compromise between political mandates to accommodate economic development and legal mandates to protect the environment, and to make permitting decisions in an expedited fashion. Compensatory mitigation policy, in other words, evolved to fulfill agency goals, not to advance a free-market agenda, even though the policies did sometimes bring regulated industries the benefits of expedited and more flexible permitting.

I have to say that I don't find this very convincing, though it is true that compensation mechanisms can serve as a way of balancing interests, as Calabresi and Melamed taught us. First of all, I doubt whether one can get a full and reliable account of agency motivations by interviewing agency sources. Second, as Laleh Khalili points out in a recent interview at Viewpoint, officials and managers often work to advance capitalism without being conscious of it. Finally (and relatedly), I would posit that regulators " driven... by conflicts over regulatory intensity and states’ rights" were in fact often responding to "Milton Friedman-style market ideals" (whether they realized it or not). "States' rights" and "regulatory reform" are ideas the popularity of which in the last few decades owe a lot to business interests, politicians, and intellectuals pushing a neoliberal, capitalist agenda. It is no surprise that "agency goals" meshed with the neoliberal agenda (or that the recent conservative about-face on compensatory mitigation exposes the essential bad faith behind much of "regulatory reform").

The political ecology of land reclamation in the Veneto

Environmental History recently published Elisabetta Novello and James C. McCann's "The Building of the Terra Firma: The Political Ecology of Land Reclamation in the Veneto from the Sixteenth through the Twenty-first Century".  The abstract:

The 1963 Vajont disaster and the devastating floods that hit the Veneto as well as other areas of Italy in 1966 brought about a significant revision of the policies on soil defense and civic protection. This was the last step in a long process of environmental management intending to build a balanced human-environmental system from the early modern period to the present. This essay explores the changing political ecology of soil and water management in the Veneto region in northern Italy. More specifically, the study traces the evolution of land reclamation works in the longue durée—in particular over the last five centuries—and the economic and social consequences of human actions on the territory. In order to fully outline the policies adopted in different historical periods, it is necessary to understand how the concept of land reclamation changed and gradually came to include drainage, hygienic, agrarian, and environmental factors, with attention paid to the specific ecologies of plains, mountains, and lagoon areas. In this long process, the changing relationships between landowners, farmers, and the state have altered human/natural interactions, with implications for land and water use.

Regional Land Reclamation Museum of Ca' Vendramin 

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)

Swamp drainage and law reform

It turns out that not all legal historians think environmental history is interesting. Today's Reviews in History has a review by Daniel Gosling of David Chan Smith's Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence, 1578–1616 (Cambridge University Press, 2014).

Here's what Gosling has to say about one of the chapters:

Chapter three looks in more detail at the corruption of the law in the early 17th century, and the complaints of those that were expected to use it. The text does this by examining the case-study of The Case of the Isle of Ely (1609), which saw Coke attempt to negotiate the proposed draining of the Fens, the low-land area of marsh and bog in the east of England. This was such a thorny issue because in order to drain the Fens taxes would have to be raised in the surrounding areas, and parts of the Fens would have to be enclosed to incentivise investors. Although this case-study demonstrated how contentious the common law could be amongst the wider population, and how Coke attempted to solve the problems, this chapter more than any of the others feels like an unnecessary digression from the wider argument, with too much time spent looking at the law in the Fens rather than the more pressing topic of common law reform that the rest of the book had set about to describe.

Some might have a different opinion. I would actually like to see a full-length study of the law of drainage; from what I remember from Catherine Drinker Bowen's book on Coke, commissions of sewers were a fertile source of law.