No free parking

Jonathan Zasloff recently posted at Legal Planet on the work of Don Shoup, particularly his book (originally an article), The High Cost of Free Parking (APA Planners Press, updated edition 2011). Zasloff writes:

As Shoup observed — and more importantly, proved — land use regulations requiring massive amounts of free parking helped create sprawling urban form as well as incentivizing reliance on the automobile....

But isn’t that what the market was demanding? No, Shoup argued. Although an economist by training, Shoup became an ersatz historian, and demonstrated that most zoning codes’ parking requirements came from model codes in the 1920’s and had absolutely no empirical basis to them. Then urban planners just copied them, because that was easier. Shoup loves to compare the “science” of parking requirements to phrenology, and he’s right. 

Post-industrial agriculture

Patrick O'Donnell has posted an updated version of his bibliography, "The Sullied Science & Political Economy of Post-Industrial Agriculture (Or: ‘Toward Agroecology & Food Justice’)".

International Conservation and the “Naturalization” of Indigenous People

The Journal of the History of Ideas recently published Raf de Bont's “'Primitives' and Protected Areas: International Conservation and the 'Naturalization' of Indigenous People, ca. 1910–1975". The abstract:

This article explores a long-standing discursive tradition within international nature conservation. In this tradition the argument is made that “primitive” people should be allowed to live in the areas the conservationists deem as “pristine” or “natural.” The article explores the (changing) relative importance of this tradition in the conservation discourse as a whole, and analyzes the shifting composition of its argumentative arsenal from the 1910s to the 1970s. Particular attention goes to the uneasy combination of two types of argument: one in which indigenous people are presented as part of nature, another in which their customary rights are stressed.

Tagbanua in Culion, Phillipines (Bulakbol)

Hetch Hetchy in the courts

Richard Frank recently blogged at Legal Planet on a lawsuit on which he's working:

A new lawsuit, filed by conservationists on the 177th anniversary of  John Muir’s birth, asserts that the City of San Francisco’s continued operation of O’Shaughnessy Dam and Hetch Hetchy Reservoir on the Tuolumne River within the Park violates Article X, section 2 of the California Constitution.  Specifically, Restore Hetch Hetchy, the organization that brought the lawsuit against San Francisco, claims that continued maintenance of the dam and reservoir in one of Yosemite’s most spectacular areas, constitutes an “unreasonable method of diversion” of water that violates state constitutional standards.

The 1913 federal Raker Act "authorized the City of San Francisco to build a dam across the Tuolumne River that would flood the Hetch Hetchy Valley in Yosemite National Park in order to deliver water supplies to San Francisco residents and businesses."

Hetch Hetchy Valley in Early 1900’s, Before Valley’s Inundation

Passage of the Raker Act marked the greatest political defeat of John Muir, America’s most famous conservationist and founder of the Sierra Club.  Some historians and biographers go so far as to attribute Muir’s death in 1914 to his heartbreak over Muir’s inability to keep his beloved Hetch Hetchy Valley from being flooded.

Fast forward to 2015.  Bay area businesses and residents have for a century enjoyed the cheap water provided by the dam and reservoir that have inundated the Hetch Hetchy Valley.  At the same time, no one today would seriously propose the flooding of a key part of one of America’s most famous and revered national parks for such offsite uses.  That’s especially true when studies show that San Francisco can fully meet its water demands through relatively modest modifications to the much larger New Don Pedro Dam and reservoir downstream on the Tuolumne–outside Yosemite’s boundaries.

In sum, Restore Hetch Hetchy’s lawsuit provides a welcome forum for a long-overdue debate over whether O’Shaughnessy Dam and Hetch Hetchy Reservoir should be removed from Yosemite and the Hetch Hetchy Valley restored to its original splendor and ecological health.  (Muir and others of his generation observed that the Hetch Hetchy Valley was an equally-stunning counterpart to Yosemite Valley, located just to the southeast and the most heavily-visited portion of Yosemite National Park.)

Melosi on environmental justice

Environmental History recently posted a "virtual issue" on "Race, Justice, and Civil Rights", in which they republish some previously published pieces from the journal. First up is Martin Melosi's "Equity, Eco-racism and Environmental History", originally published in 1995. Melosi surveys the then-young environmental justice movement in the US, its points of departure from the mainline environmental movement, and its implications for the writing of environmental history. Melosi writes:

Aside from the intrinsic importance of race as an issue for further inquiry, the current public debate over questions of environmental equity, environmental justice, and eco-racism are changing the focus of the environmental discourse in the United States and in other parts of the world. Just as the environmental movement of the 1960s and 1970s helped to shape the burgeoning field of environmental history, the current public dialogue over equity and environmental justice ultimately may have a similar impact.

It's interesting to thing about to what extent that has indeed happened, and also how different American environmental history writing is from American legal history writing in this respect.

Melosi goes on:

The Environmental Justice Movement, because of its controversial stances on race, class, and the environment, and its skepticism about the goals and objectives of mainstream environmentalism, is playing a historic role in reintroducing "equity" into the public and academic debate over environmental policy. Equity, however, has been transformed into "environmental justice," with a particular focus on the traditional American underside caught beneath the wheels of an avaricious economy. From the historian's vantage point, this is but one aspect of a larger issue-an issue already addressed broadly by philosophers, as well as by social scientists-especially sociologists and economists-concerned mainly with distributional effects.

The public trust in wildlife

John Echeverria's Takings Litigation blog recently (April 24) covered a surprising development in arguments before the US Supreme Court:

Who could have imagined that the takings case of Horne v Department of Agriculture argued in the Supreme Court this past Wednesday might portend revival of the doctrine of public trust ownership of wildlife?  But it might. Really.

The Horne case has to do with whether a federal program forcing raisin growers to turn over a portion of their crop to the government is a "taking", constitutionally requiring compensation. Echevarria explains how the public trust comes into this:

The dramatic surprise in the oral argument on Wednesday came during the discussion of the 1929 chestnut of Leonard v. Earle, a Supreme Court precedent with an uncanny resemblance to the Horne case. The case involved a takings claim based on a Maryland statute that required oyster “packers” to turn over to the State of Maryland, once the oysters had been shucked, 10% of the empty shells. The shells, though surely not as valuable as the innards, had value for roadmaking, as fertilizers, and as animal feed. The State’s purpose in procuring the shells was to arrest the “rapid exhaustion” of Maryland’s oyster beds by using the spent shells to build the depleted beds back up and provide a substrate on which young oysters could grow.  In response to the argument that the statute amounted to a taking, Justice McReynolds wrote:

“From the packer’s standpoint, empty shells are but ordinary articles of commerce, desirable because convertible into money. Their value is not large, and the part taken by the state will be so used as greatly to advantage the business of packing. The purpose in view is highly beneficent, and the means adopted are neither arbitrary nor oppressive. The federal Constitution may not be so successfully invoked by selfish packers who seek to escape an entirely reasonable contribution, and thereby to thwart a great conservation measure generally approved.”

African-American Oystermen circa mid-1800s (oysterharbor.org)

Culture and environmental law

Over at Legal Planet, Dan Farber recently blogged on Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014). Farber writes:

Views on environmental issues are related to broader culture differences.  According to social scientists, environmentalists tend to be egalitarian, believe in harmony with nature, and stress responsibility over autonomy.  Their opponents, who are skeptical about regulation, tend to favor traditional hierarchies, believe in human mastery of nature, and stress autonomy over responsibility. Jon Cannon’s new book, Environment in the Balance, extends this theory to the Supreme Court, with illuminating results.

Farber goes on to explain how Cannon's book shows how this cultural divide has played out in the US Supreme Court with regard to a couple of legal issues.

From the publisher's website:

Jonathan Z. Cannon demonstrates that from the 1960s onward, the Court’s rulings on such legal issues as federalism, landowners’ rights, standing, and the scope of regulatory authority have reflected deep-seated cultural differences brought out by the mass movement to protect the environment. In the early years, environmentalists won some important victories, such as the Supreme Court’s 1973 decision allowing them to sue against barriers to recycling. But over time the Court has become more skeptical of their claims and more solicitous of values embodied in private property rights, technological mastery and economic growth, and limited government.

The history of the IUCN

My friend Richard Laster recently brought to my attention Barbara Lausche's Weaving a Web of International Law (IUCN/ICEL, 2008, fully available online), a history of the International Union for the Conservation of Nature's Environmental Law Programme.

The book traces the program's origins back to pre-war Switzerland and the Netherlands, but things really picked up just after World War II, including efforts in the 1950s to advance a World Charter for Nature inspired by the Universal Declaration on the Rights of Man. The organization was influential in the creation of several environmental treaties, as well as in advancing domestic legislation around the world.

Though it aims only to tell the story of one organization, it seems to me the larger significance of the book in the historiographical landscape is that it shifts attention from both internal-doctrinal factors and (domestic) external-social/political/cultural ones that are usually marshaled to explain the evolution of environmental law, (back) to the realm of institutions and especially international experts, and their role in shaping environmental law across jurisdictions and on a global scale.

Honorable mention to Pravilova's "A Public Empire"

The Law and Society Association recently gave an honorable mention in the category of the J. Willard Hurst Award for the best book in socio-legal history to Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014). From the publisher's description:

Many scholars have attributed Russia’s long-term development problems to a failure to advance property rights for the modern age and blamed Russian intellectuals for their indifference to the issues of ownership. A Public Empire refutes this widely shared conventional wisdom and analyzes the emergence of Russian property regimes from the time of Catherine the Great through World War I and the revolutions of 1917. Most importantly, A Public Empire shows the emergence of the new practices of owning “public things” in imperial Russia and the attempts of Russian intellectuals to reconcile the security of property with the ideals of the common good.

The book analyzes how the belief that certain objects—rivers, forests, minerals, historical monuments, icons, and Russian literary classics—should accede to some kind of public status developed in Russia in the mid-nineteenth century. Professional experts and liberal politicians advocated for a property reform that aimed at exempting public things from private ownership, while the tsars and the imperial government employed the rhetoric of protecting the sanctity of private property and resisted attempts at its limitation.

Exploring the Russian ways of thinking about property, A Public Empire looks at problems of state reform and the formation of civil society, which, as the book argues, should be rethought as a process of constructing “the public” through the reform of property rights.

I hope we'll hear more about this book soon.

Call for Papers: Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries

The call for papers for an international symposium on "Environmental Conflicts, Business Strategies and Environmental Management in Mining and Metallurgical Industries, 18th-20th centuries", to be held 21-22 May 2015 in Évora, Portugal, has been extended to May 3. From the call:

At the end of the 19th c, within the context of capitalist firm competition and the dynamics generated by technological advance, the creation of global markets for minerals and metals promoted intensive extractive and industrial large scale operations which had a major impact not only on the quality of the water from springs, rivers and seas, but also on air and soils. New industrial landscapes were created in the process under the enthusiasm fostered by the ideologies of progress, nationalism and militarism. While environmental conflicts are today one of the dominant forms of social contention, they remained almost silenced in the past. This scientific meeting addresses the role of those conflicts in the shaping of strategies in Mining and Metallurgical Industries (MMI) and in the emergent knowledge of environmental management and governance that has become embedded in the European legal and institutional framework. From this standpoint, other issues should be also addressed, such as:

• How MMI responded to emergent environmental issues raised by institutions and the civil society?

• How risk and other environmental related concepts became under consideration in business strategies and, especially, what were the scientific and technological initiatives adopted?

• How environmental conflicts varied across time and cultures (organization, components, social influence, etc)?

The full call and more details are here.