faulker080

Bixby Creek Bridge near Big Sur, California (Bill Lane Center for the American West) The issue of public beach access has played a major role in the history of environmental law (see, e.g., here , here , and here ). It also may be responsible for some of the backlash against environmental regulation. Last year the Journal of Policy History published Jefferson Decker's "Pacific Views: Property Rights, the Regulatory State, and American Conservatism" . The article opens: In November 1976, a bookkeeper named Viktoria Consiglio used money from an inheritance to purchase a plot of land overlooking the Pacific Ocean just south of Carmel, California. Two years later, Consiglio and her husband prepared to build a one-bedroom house for use during their retirement. They submitted applications for a building permit only to have their request denied. The impediment was the California Coastal Commission, a statewide regulatory agency that Californians had recently established in order...

That's the title of a paper recently posted by Daniel Cole . The abstract: Economists and legal scholars have known for decades that "economic instruments," including cap-and-trade regimes and effluent taxes, can reduce emissions at lower cost than command-and-control regulations. Yet, the US system of environmental law remains heavily dominated by command-and-control. How can we explain this remarkable persistence? This paper considers three alternative explanations: (1) path-dependency; (2) public choice theories of interest-group politics; and (3) social-welfare/economic efficiency. Using examples, mainly from the US Clean Air Act, the paper finds that none of the three alternatives offers a sufficient and complete explanation of the persistence of command-and-control. But all three contribute significantly to a comprehensive explanation.

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 Fr...

Public Books recently ran a review by Max Holleran of  Peter Dauvergne's  Environmentalism of the Rich (MIT Press, 2016). Holleran writes that the book traces the shifting tactics of mainstream environmentalism from the radicalism of the 1970s to the corporate partnerships of the 1990s, in which companies accomplished incremental changes through in-house consultations with groups like the Sierra Club. It details how many green groups began as firebrand protectors of the earth, deeply inspired by indigenous movements that opposed the sale and commodification of nature, but have since morphed into something akin to compliance departments for large companies. ***** Green movements of the Global North and the Global South are markedly different; within that divide, unique national experiences have produced a variety of environmentalisms, some of which do not even use the name and prefer to align with indigenous rights or class-based movements. The 1970s environmental movement came of...

Rata forest on on Enderby Island Earlier this year André Brett published "A Sudden Fancy for Tree-Planting? Forest Conservation and the Demise of New Zealand's Provinces" in Environment and History.  The abstract: New Zealand provides a valuable case study of the relationship between colonial statecraft and forest conservation. This article explores the connections between Premier Julius Vogel’s Forests Act of 1874 and the abolition of New Zealand’s provinces in 1876, locating conservation within the broader context of popular discontent with provincialism. It argues that previous perspectives have either downplayed or exaggerated the significance of conservation to provincial abolition, and that the relationship between the two was complex and uneven. Abolition profoundly affected conservation, but the stimulus for abolition had been gathering elsewhere even as conservation shaped its timing.

"Diploma" of Frederick Barbarossa granting navigation rights to the monastery of San Carpoforo di Como (1159) I recently came across Acque della Lombardia Medievale,  apparently the catalog for an exhibition held by the Biblioteca Ambrosiana di Milano in 2015 . (If you're ever in Milan, don't miss the associated Pinacoteca Ambrosiana.) The editors, Federico Gallo and Rita Pezzola, write: According to Roman law, one defines every permanent water-course as " publicum " whether it was navigable or not, and only rivulets and streams were considered private. During the Middle Ages and in particular in the 10th and 11th centuries, we find more and more imperial and royal diplomas giving grants and donations related to stretches of rovers: they refer to the construction of ports and mills and to fishing and navigating rights. Thus the principle, or better the custom, of considering some parts of a river as capitalized (today we would say "privatized") was...

Murray Clamen and Daniel Macfarlane recently posted "The International Joint Commission, Water Levels, and Transboundary Governance in the Great Lakes" . The abstract: This article provides a historical background of the evolution of transboundary water governance and environmental diplomacy in the Great Lakes–St. Lawrence basin, with a focus on the International Joint Commission (IJC), during the twentieth century. This study focuses on water quantity issues, such as diversions, canals, hydroelectric developments, control works, and water levels, revealing the range of  artificial and natural impacts on water levels in the Great Lakes–St. Lawrence basin. Doing so provides for a revealing examination of the IJC, which has traditionally been the main forum in which Canada and the United States manage their environmental relations and border water issues, which allows for an engagement with a range of North American transboundary governance theories. While the IJC is often laude...

The Ahwahnee Hotel in 1980 (George Rose) Daniel Duane has an interesting piece in yesterday's New York Time s  on genocide of the Yosemite Valley's natives and the replacement of their names with Anglo ones, and it all starts from a trademark dispute. After detailing the killing and renaming of places in Yosemite carried out by California militia, Duane explains both the legal dispute and the complexity of the name issue: The recent furor over the name of the Ahwahnee began in 2015, when a subsidiary of the Delaware North Corporation, which operated the park’s hotels, restaurants and shops for more than two decades under a government concession contract, lost its contract to Aramark (no tragedy there — the burgers were criminal). The government says Delaware North quietly registered the trademarks for the names on the hotel and the other places and is now demanding payment for their use. The National Park Service came up with new names and told Delaware North to get lost. Now t...

Jill Robbie blogged this week at the University of Glasgow School of Law's blog , exploring connections between her work on the history of Scottish water law (see her Private Water Rights , 2015) and my own on the history of the appropriation doctrine in the western US. Jill writes: In The Colorado Doctrine , David investigates the historical development of the prior appropriation doctrine of water rights, commonly associated with the western states of America. The traditional view of the evolution of this doctrine is that the riparian rights doctrine of the eastern states, which entitles all landowners along a river to reasonable use of the water, was unsuited to the arid climate of the west. Therefore, a “first in time, first in right” system of water rights was created under which rights are obtained through use and earlier users are preferred to those coming later. The water rights are severable from landownership and transferable. For some law and economics scholars, the evolu...