Friday, August 12, 2016

Environmental views on the US Supreme Court

A year ago we noted Jed Purdy's review of Jonathan Cannon's Environment in the Balance: The Green Movement and the Supreme Court (Harvard UP, 2014). Now we have Anthony Penna's review of the same in Environmental History. An excerpt:
Jonathan Z. Cannon’s Environment in the Balance argues that the majority of the Supreme Court’s decisions regarding environmental legislation reflected a struggle between competing and conflicting beliefs and values. Environmental laws embraced “an ecological model of the world” (p. 1) that posits interconnections among humans and the natural world and seeks to protect it from potentially harmful human activities across place and time. In contrast, the Supreme Court’s conservative majority during the last forty years (highlighted by the appointment of Associate Justice Scalia in 1986) represented a different set of values and beliefs, stressing individualism, property rights, economic growth, and limited government.
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It is difficult to imagine a more complete analysis of the Supreme Court’s conservative direction when interpreting environmental legislation. Chapter 2, “Environmental Law, the Court, and Interpretation,” provides the background for thirty selected cases from a group of 150 significant environmental cases decided between 1970 and 2014 and an interpretive guide for categorizing majority and minority positions. Chapter 3, “Environmental Urgency and Law,” reinforces the author’s thesis that the deep-seated beliefs and values of justices inform their decisions when interpreting environmental laws.
Chapter 4, “Law for the Environmental Other,” explores the Court’s findings when the rights of the other conflicts with human use and benefit. In cases in which species protected by the Endangered Species Act, 1964 and the Marine Mammal Protection Act, 1972 were litigated, the Court rejected arguments that reflected Aldo Leopold’s ecocentric perspective.
In Chapter 5, “Efficiency,” Cannon notes that from 1972 to 2007 the Court resisted using cost-benefit-analysis in environmental and worker safety statutes. 

Wednesday, August 10, 2016

More on Indian treaties

"Salmon Fishing at Chenook", James G. Swan,
in The Northwest Coast; Or, Three Years' Residence in Washington Territory, 1857
Yesterday we posted on Indian treaties in the northeastern US (and Canada); today it's the Northwest. Michael Blumm recently posted "Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration". The abstract:
In 1970, twenty-one tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington, claiming that numerous state actions violated their treaty rights, which assured them “the right of taking fish in common with” white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s guaranteed the tribes 1) a share of fish harvests for both cultural and commercial purposes, 2) inclusion of hatchery fish in that harvest share, and 3) protection of the habitat necessary to provide the fish that were the basis of the bargain which led to peaceful white settlement of the Pacific Northwest. By 1985, the tribes and the trustee convinced the courts of the merits of the first two propositions, but the Ninth Circuit deferred on the third, requiring a specific factual dispute. 
Some two decades later, in 2007, the tribes and the federal government convinced district judge Ricardo Martinez that the state’s construction and maintenance of road culverts blocking salmon access to their spawning grounds violated the 1850s treaties. In 2013, after settlement talks failed, the district court issued an injunction that required most of the offending barrier culverts to be remedied within seventeen years, or by 2030. Claiming exaggerated costs of compliance, the state appealed, and in 2016 a unanimous panel of the Ninth Circuit affirmed, rejecting wholesale the state’s allegations. This article discusses the reasoning of both the district court and the Ninth Circuit and makes some assessment of the road ahead, which may implicate road culverts owned by other governments and other habitat-damaging activities like dams, water diversions, and land management actions affecting water quality and quantity.

Tuesday, August 9, 2016

Squirrels, bears, and treaties

Black Squirrel, Stirling Ontario (Robert Taylor)
Loren Michael Mortimer recently posted at Early Canadian History on bear and squirrel migrations across the St. Lawrence River in the late 18th century:
In September of 1759, great armies were on the move through the upper St. Lawrence Valley. Not the military forces under the command of Montcalm and Wolfe en-route to their climactic showdown on the Plains of Abraham, but an army of black bears migrating en-masse southward from Canada into Britain’s Atlantic colonies. During that autumn, newspapers from New England and New York recorded a southern migration of bears, accompanied by an equally mysterious appearance of thousands of black squirrels. Bears were reported in the city of Boston for the first time in a century—a large bear “the size of small cow” was shot on a Boston wharf as it swam across the harbor from Dorchester Neck.
Bears were “spreading mischief” on colonial farms from the New England frontier to the lower Hudson Valley, devouring fields of “Indian corn” and destroying stocks of hogs, sheep, and calves. British army officers bemoaned frequent bear sightings near General Jeffery Amherst’s field headquarters on Lake Champlain. Newspapers printed lurid tales of a bear attacking and eating two children as they picked beans in a field in Brentwood, New Hampshire. One bear reportedly attacked a female colonist walking near her house, but only made off with the “hind part” of her gown. As much as these armies of marauding bears and squirrels vexed Anglo-American colonists, they provided a critical windfall for indigenous hunters residing beyond New England in the Canadian borderlands and the vast St. Lawrence watershed to the north. 
There's a legal angle to this, as well:

Thursday, August 4, 2016

Merchants of Doubt - the prequel

(courtesy The Age of Change)
Oreskes and Conway's Merchants of Doubt shined a light on how industry employed scientists in recent decades to cast doubt on the reality of environmental and health problems like smoking and climate change. An article by Andrew Perchard & Keith Gildart in last year's Labor History, "'Buying brains and experts': British coal owners, regulatory capture and miners’ health, 1918 – 1946", shows that this problem has been around for a while. The abstract:
This article examines British coal owners’ use of medical and scientific knowledge of occupational lung diseases in the mining industry to resist regulatory changes between 1918 and 1946. It explores the strategies deployed by coal owners in response to scientific and lay debates over the hazard to workers’ health presented by dust, and legislation to compensate miners for pneumoconiosis and silicosis contracted in the nation’s collieries. In particular, it investigates coal owner deployment of the views of notable scientists, especially the eminent physiologist John Scott Haldane (1860–1936), who insisted on the harmlessness of coal dust, in order to avoid costly compensation payments, as well as capital investment in ameliorative measures to reduce miners’ exposure to such hazards. In so doing, the article provides new insights by illustrating how coal owners influenced mining education programmes, deploying the arguments of Haldane and others, with direct implications for health and safety in British mines. This contributed to the mounting public health disaster wrought by coal dust on Britain’s mining communities. This process is viewed as part of the broader political activities of the coal owners – and their industry body, the Mining Association of Great Britain – in its attempts to influence the regulatory process in a period of dramatic change in the political economy of coal.

Sunday, July 31, 2016

Water pollution regulation in 1909

Last week This Day in Water History reproduced a 1909 article from Municipal Journal and Engineer, "Stream Pollution in America", according to which state authorities were very active in prosecuting violations of water pollution regulations. Some highlights:
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.
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In Maryland many of the larger towns maintain sewage disposal plants, but about 120 restraining orders have been issued against municipalities and corporations during the past year on account of stream pollution. 
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Indiana’s new anti-pollution law, passed this year, forbids the pollution of streams, its enforcement being in the hands of the State Board of Health. 
The blog comments: "The important thread that runs through most of the state reports is that pollution of waterways was prohibited by state law. However, we know from other sources that these laws were seldom enforced or had penalties that were too lenient, so they were ignored."
"The Governor of Maryland Accompanying the Sewerage Commission
 and the Chief Engineer on a Tour of Inspection through the Outfall Sewer"
 (courtesy Water and Me)

Thursday, July 28, 2016

More zoning history: the Federal government, Herbert Hoover, and sprawl

In honor of zoning's 100th anniversary, John Nolon has been posting a multi-part series on the history of zoning at Land Use Prof Blog (see here at the bottom of the page). Some highlights from the first couple of posts (here and here) on the interplay between local, state, and national legislation:
Cities are not sovereign entities; they get their legal authority from the state. New York City’s zoning law, for example, was enabled by a 1914 act of the state legislature, which amended the City’s Charter to authorize it to control land use. Twenty state legislatures, plus the District of Columbia, followed suit by adopting some form of zoning enabling act by 1921.  In other states, many localities rushed to adopt zoning laws in the absence of state authority, risking invalidation due to their lack of legal authority. The need for enabling acts in all states and for a uniform and effective method of delegating control of land use to municipalities led to the promulgation of a model zoning enabling act by a national commission in 1922.
Although the federal government has limited power to regulate local land uses, it has an important role to play in enabling, guiding, and assisting local governments to exercise their delegated power wisely. Zoning’s story illustrates the powerful influence that the federal government can wield if it plays this facilitative role strategically.  In the case of zoning’s adoption, the story involves the federal Department of Commerce.
As Secretary of Commerce under presidents Harding and Coolidge in the 1920s, Herbert Hoover paved the way for the rapid adoption of zoning. Hoover noted “Our cities [do] not produce their full contribution to the sinews of American life and national character” and these “moral and social issues can only be solved by a new conception of city building.”  His response was to appoint two advisory committees: one to write a standard building code and another to draft model zoning and planning statutes to be adopted by the states, in their discretion. 

Tuesday, July 26, 2016

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.”
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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.” 

Monday, July 25, 2016

City smoke ordinances

The Library of Congress webpage The Evolution of the Conservation Movement, 1850-1920 has quite a bit of legal material from the period:
The collection consists of 62 books and pamphlets, 140 Federal statutes and Congressional resolutions, 34 additional legislative documents, excerpts from the Congressional Globe and the Congressional Record, 360 Presidential proclamations, 170 prints and photographs, 2 historic manuscripts, and 2 motion pictures.
There are some unexpected treasures here, for instance Samuel Flagg's 1912 booklet, City Smoke Ordinances and Smoke Abatement, published by the Bureau of Mines (see title page below). The website explains:
Although concern for the effect of human environmental activity on human welfare did not move to the center of what is now called the environmental movement until the 1960s, the turn-of-the-century conservation movement did include something contemporaries referred to as "human conservation:" an attempt to improve the quality and quantity of human life, particularly in the nation's burgeoning urban centers, through attention to certain kinds of environmental management, particularly technological intervention. Within this framework, engineers, scientists and public policy-makers sought to determine how natural resources, such as mineral fuels, could be used with both maximum efficiency and minimal detriment to the human environment. This brief survey by the U.S. Bureau of Mines provides a concise and systematic overview of contemporary anti-air-pollution efforts as reflected in the smoke-abatement ordinances of cities throughout the country, and prescribes the essential characteristics of ordinances appropriate for municipalities of different sizes. An Appendix reprints actual ordinances from Chicago, Pittsburgh, Des Moines, Milwaukee, Los Angeles, and Boston by way of example. It should be noted that the problems caused by urban smoke are defined (p. 8) in terms of economic waste, damage to buildings, loss of light, dirt, and injury to vegetation, but not as a direct threat to human health.
For more environmental law treatises of the period, see here. For more on smoke regulation, see here and here.

Thursday, July 21, 2016

Gender discrimination in the commons

Marco Casari and Maurizio Lisciandra recently posted "Gender Discrimination in Property Rights: Six Centuries of Commons Governance in the Alps". The abstract:
Starting from the Medieval period, women in the Italian Alps experienced a progressive erosion in property rights over the commons. We collected documents about the evolution of inheritance regulations on collective land issued by hundreds of villages over a period of six centuries (thirteenth-nineteenth). Based on this original dataset, we provide a long-term perspective of decentralized institutional change in which gender-biased inheritance systems emerged as a defensive measure to preserve the wealth of village insiders. This institutional change also had implications for the population growth, marriage strategies, and the protection from economic shocks.

Tuesday, July 19, 2016

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: