Origins of the Clean Air Act

Christopher Ahlers has posted "Origins of the Clean Air Act: A New Interpretation", what should be another nail in the coffin of the still-too-prevalent view that environmental law began around 1970. The abstract:

Given the increased national attention to the use of the Clean Air Act to address climate change, an analysis of the origins of the Clean Air Act is instructive for understanding the law in its current form. Contrary to the traditional view, the formation of the Clean Air Act was not the result of the events of the Year of the Environment, but rather, the gradual evolution of a federal regulatory approach to the medium of air between 1955 and 1970. Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern Clean Air Act.

Harry Sternberg, Smoke Stacks in the Moonlight (1937)

Environmental protection in New Zealand

Geoffrey Palmer has posted "The Resource Management Act - How We Got It and What Changes are Being Made to It". The abstract:

At a time when the New Zealand Government is proposing significant changes to New Zealand’s key environmental protection statute the Resource Management Act 1991, one of the architects traces the Act’s origin and history. The Act is based on the principle of sustainable management articulated in the report of the World Commission on Environment and Development in 1987. This chapter in a book analyses the forces that led to the enactment, particularly the National Development Act 1979. It also canvases weaknesses in the administration of the Act and critiques the Government’s proposals for reform.

Desegregation of national parks

Another article from Environmental History's virtual issue on environmental justice (other were noted here and here), Terence Young's "'A Contradiction in Democratic Government’: W. J. Trent, Jr., and the Struggle to Desegregate National Park Campgrounds", brings together environmental history and the history of desegregation, at the same time reminding us that desegregation in various contexts took place by administrative action before Brown v. Board of Education. The abstract:

Camping began in the nineteenth century as an elite form of pilgrimage to the wild, but the arrival of inexpensive automobiles in the early twentieth century greatly expanded camping's social diversity. The change was not universally embraced, especially when African Americans were involved, and the issue came to a head during the 1930s after two racially segregated national parks were opened in southern states. As complaints flowed in, William J. Trent, Jr., became adviser for Negro affairs to Interior Secretary Harold L. Ickes. He had no special interest in the outdoors or national parks, but Trent championed increased African American access to the parks and an end to discrimination in them. NPS leadership resisted Trent's efforts until Secretary Ickes ordered them to create one nonsegregated demonstration area in Shenandoah National Park in 1939. The policy was extended to other areas in 1941 and the next year, with World War II shifting into high gear, campground and other forms of segregation were ended throughout the park system.

Shenandoah National Park (National Park Service)

Zoned in the USA

H-Environment recently posted Richard Walker's review of Sonia Hirt's Zoned in the USA: The Origins and Implications of American Land-Use Regulation (Cornell UP, 2014). Walker writes:

Hirt does four things in this volume. First, she lays out the essentials of American zoning and planning without getting lost in the details. Second, she makes the comparative case for the uniqueness of the United States in terms of its degree of spatial homogeneity and protection of the idealized single-family, detached house. Third, she gives a quick tour of the history of spatial separation in cities and especially the rise of urban planning in Europe, before returning to the deep roots of "exclusive domesticity" in America ideology from the colonial era onward. Finally, she provides a fine, brief history of the establishment of deed covenants and municipal zoning in the US case.

The essence of Hirt's analysis is that American zoning is distinct from all other national planning practices, and that it is so because the spatial order of American society and cities is unique. In this, history matters in showing the depth of American ideas and permanence of US practices concerning what Hirt calls "spatial individualism": freedom conceived geographically as isolation and elbow room. Frederick Jackson Turner goes to town, as it were. Along with this came a uniquely American preference for the single-family, detached house, which dominates urban space and legal practice as in no other country. Hirt certainly recognizes the importance of separating noxious uses from domestic tranquility as the foundation for zoning, but she is nicely attuned to two other things vital to spatial freedom in the American sense: freedom from having to mingle with the lower classes and races and freedom to profit from property development by keeping government at bay except to minimize uncertainty and risk. The desire for spacious, single-family housing segregated by class, race, and function was deeply ingrained in popular bourgeois culture.

One thing I particularly like in Hirt's historical approach is that, unlike almost all other treatments of zoning and spatial segregation in American cities, this one does not begin after World War Two and does not put the bulk of the blame on the federal government's mortgage policies. The New Deal simply put federal muscle and money behind what was already standard practice locked into the fabric of urbanization by the real estate industry and Herbert Hoover in the 1920s. As is so often the case in the United States, government policy and business interests went forth hand in hand to build cities profitably.

Maximum Sustained Yield

H-Environment recently posted a Roundtable Review of Carmel Finley's All the Fish in the Sea: Maximum Sustainable Yield and the Failure of Fisheries Management (U Chicago Press, 2011). Particularly interesting are the comments by Sayuri Guthrie-Shimizu. Some excerpts:

In her discussion of the surprising flimsiness of MSY as a scientific concept, Finlay points to the “scientific racism” beneath the attitudes of the American public officials and scientists concerned with fisheries regulation at mid-century. They long held the notion, or even truism as it were, that Japanese fish science was at best woefully lacking by Western standards of scientific rigor, and at worst nonexistent. In fact, Finley argues, Japan, because of its dependence on marine living resources, had a long and venerable history of studying fish stocks and their husbandry going back to the industrialization of the nation’s inshore and coastal fisheries in the nineteenth century. Japan was also a respected source of knowledge in the inchoate fish science sought by other nations from the 1930s on, including the United States…. Works by historians of Japanese fisheries such as Yoshitaka Takahashi attest that Finley is right: Japan had indeed developed a sophisticated administrative system of fisheries management based on systematic accumulation of data even before Japan was “forced open” by Commodore Matthew Perry and famously exposed to the benefits of Western science and technology. Another interesting point Finley makes about various iterations of American racism or ethnocentrism tainting the views of American scientists and practitioners is that the United States vilified the efforts by Central American coastal nations such as Ecuador and Peru to curb American bait fishing off their shores as an attempt to extract a “tribute” from US fishermen, and they refused to regard such control as a legitimate administrative prerogative exercised by sovereign states on a par with the United States.

From NIMBY to civil rights

A couple of weeks ago we posted on the first article in Environmental History's virtual issue on environmental justice. The second is Eileen Maura McGurty's 1997 "From NIMBY to Civil Rights: The Origins of the Environmental Justice Movement". The article begins:

In the summer of 1978, Robert Burns and his two sons drove liquid tanker trucks along rural roads in thirteen North Carolina counties and through remote sections of the Fort Bragg Military Reservation. Driving at night to avoid detection, they opened the bottom valve of the tanker and discharged liquid contaminated with polychlorinated biphenyls (PCBs) removed from the Ward Transformer Company in Raleigh onto the soil along the road shoulders. This violation of the Toxic Substance Control Act (TSCA) continued for nearly two weeks until 240 miles of road shoulders were contaminated. Robert Ward had hired the Burnses to illegally dispose of the contaminated liquid in an attempt to avoid the escalating cost of disposal that was due, in part, to increasing regulation of hazardous waste. Since the contamination occurred on state-owned property, North Carolina was responsible for remediation. Within a few months after detecting the contamination, the state devised a plan calling for the construction of a landfill in Warren County, a rural area in northeastern North Carolina with a majority of poor, African-American residents. Warren County also suffered the most contamination of any of the thirteen counties effected by the illegal disposal. A farmer in the small community of Afton, facing a foreclosure and bankruptcy, sold his property to the state for use as a final resting place for the contaminated soil.

The article goes on to discuss the Warren County protests and the foundation of the environmental justice movement.

Islamic law and natural resources

In an ecumenical spirit, following yesterday's post on Presbyterianism, today we note the recent publication in Environment and History of Sabrina Joseph's "Islamic Law and the Management of Natural Resources in Seventeenth and Eighteenth Century Ottoman Syria". The abstract:

Drawing on evidence from seventeenth and eighteenth century Islamic legal sources in Ottoman Syria, the paper examines the laws governing the use and management of natural resources, particularly for agricultural production. Islamic jurists played a key role in mediating the state's relationship with local populations and legitimising local practices and customs that governed land and water use. Often, this translated into laws which prioritised protecting the public good while not necessarily challenging existing power structures. The paper also explains how pious endowments (waqfs) were integral to the management of land and water resources in Ottoman Syria. The study sheds light on indigenous narratives regarding the environment and how Islamic law adapted to social and economic circumstances on the ground. Ultimately, the law contributed to ensuring the socio-cultural sustainability of ‘management’ strategies implemented by local populations vis à vis the environment. 

Sultan's Pool, Jerusalem, 1943 (LOC)
(a 5-min. bike ride from my house, looks a bit different today)

Christianity and environmentalism

Like others, I think Lynn White's "The Historical Roots of Our Ecological Crisis" reflects a facile view of the connection between western religion and environmental degradation.

Promoting his new book, Inherit the Holy Mountain: Religion and the Rise of American Environmentalism (Oxford UP, 2015), Mark Stoll recently posted two pieces (at the History News Network and the OUPblog) on the Presbyterian roots of the American conservation movement. Anyone who still thinks that religion is antithetical to environmentalism, or who hasn't noticed its very religious trappings, should take a look.

More on Mono Lake

Mono Lake continues to inspire scholarship, with Erin Ryan recently posting "The Public Trust Doctrine, Private Water Allocation, and Mono Lake: The Historic Saga of National Audubon Society v. Superior Ct.". The abstract:

This article tells the epic tale of the fall and rise of Mono Lake — the strange and beautiful Dead Sea of California — which fostered some of the most important environmental law developments of the last century, and which has become a platform for some of the most potentially important developments in the new century. It shares the backstory and legacy of the California Supreme Court’s famous decision in National Audubon Society v. Superior Court, 658 P.2d 709 (Cal. 1983), known more widely as “the Mono Lake case.” Inspired by innovative legal scholarship and advocacy, the decision spawned a quiet legal revolution in public trust ideals, which has redounded to other states and even nations as far distant as India. 

Mono Lake (BPG)

The Mono Lake dispute pitted advocates for the local ecosystem and community against proponents of the continued export of Mono Basin water to millions of thirsty Californians hundreds of miles to the south. The controversy itself spanned decades, but the story leading up to the litigation stretches back more than a hundred years, adding depth and dimension to the tale that is easily missed on a casual reading of the Audubon Society decision itself. It is a case study on the challenges and possibilities for balancing legitimate needs for public infrastructure and economic development with competing environmental values, all within systems of law that are still evolving to manage these conflicts. And at this particular moment in time, commemorating the hundredth anniversary of the Los Angeles Aqueduct that would threaten the lake and the twentieth anniversary of the State Water Board’s ultimate decision to save it, the Mono Lake story is especially worth revisiting.

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.