"One man's ceilin' is another man's floor": property rights as the double-edged sword.

• Author: Cutting, Robert H.

1. INTRODUCTION

   Scientists view the world as a vast interconnected web. (1) School children know Commoner's Four Laws of Ecology by heart:

   (1) Everything is connected to everything else.

   (2) Everything must go somewhere.

   (3) Nature knows best.

   (4) There is no such thing as a free lunch. (2)

   Great river systems, the ocean tides, arctic air masses, and subterranean aquifers care nothing for political boundaries and property lines crafted by the legal systems of the planet. Green Theorists argue that this indifference is the Economy of Nature. (3) Viewed from a jetliner or mountain ridge, the forces of nature are readily apparent even to the casual observer. The Anglo-American legal system embodies this view in concepts such as the public trust doctrine and riparian rights. (4) The Wisconsin Supreme Court decision in Just v. Marinette County (5) is often cited as a watershed judicial validation of the view that the state may legally require nature to be left undisturbed, if harm to public trust property can thereby be avoided, without compensating the landowner under the United States Constitution's Fifth Amendment Takings Clause. (6) Professor Joseph Sax and others also believe that Just v. Marinette County was the target of Justice Scalia (7) in the line of cases that includes Lucas v. South Carolina Coastal Council. (8)

   Anglo-American property law, on the other hand, views the world as a grid comprised of political boundaries and the property lines of individual owners. (9) Property is part of a human system to transform nature into something else (the Transformative Economy), thereby generating greater economic value. (10)

   The clash of interests presented by these divergent views has confounded theorists such as Boalt Hall's Joseph Sax, who calls the challenge of reconciling the Transformative Economy with the Economy of Nature "one of the most important problems of our day." (11) Sax is direct:

   Viewing land through the lens of nature's economy reduces the significance of property lines. Thus a wetland would be an adjunct of a river, in service to the river as a natural resource. Beach dune land would be the frontal region of a coastal ecosystem extending far beyond the beach itself. A forest would be a habitat for birds and wildlife, rather than simply a discrete tract of land containing the commodity of timber. Under such a view the landowner cannot justify development by simply internalizing the effect of such development on other properties. Rather, the landowner's desire to do anything at all creates a problem, because any development affects the delicate ecosystem which the untouched land supports. In an Economy of Nature the landowner's role is perforce custodial at the outset, before the owner ever transforms the land. Moreover, the object of the custody generally extends beyond the owner's legally defined dominion. The notion that land is solely the owner's property, to develop as the owner pleases, is unacceptable. (12) Sax offers a variation of the usufructary rights found in the public trust subset as a model, but concedes that it is difficult to conceive of a method harmonizing the natural economy with the Transformative Economy without doing "great violence" to the system of property lines. (13)

   The purpose of this Article is to examine the debate and suggest that the most direct method to regulate transboundary migration of materials that can damage persons or other property, public or private, is to 1) contain all materials within property boundaries, and 2) limit the ability of the owner to modify or consume resources that move on, over, or under the property (primarily air and waters), so that when the resources move on they are relatively undisturbed. (14) Thus, property lines can be used to do some of what Professor Sax seeks: to contain externalities (using a broad definition of the term to capture any offsite effect, including any effects on resources that move off the property), and to identify and regulate more precisely any alteration and consumption of transitory resources. (15) The line is distinct and characterized by property boundaries rather than an inquiry into the reasonableness of any given individual conduct. This device, coupled with concepts such as the Public Trust and riparian rights, might provide a more accurate methodology to analyze the rights and responsibilities of all. The device is closely related to Public Trust in that protection of the resources of the Common is a principle goal (as property right common to all property), and it could be accomplished by preventing pollution at the source property, thereby protecting the resources and offsite property of commons (for example, wetlands) and by protecting the public's interest in the transitory resources. Several lines of cases are evolving that would support this view, based on the rights of the receptors as well as the rights (and responsibilities) of owners of generator properties. (16)

   The Property Rights Movement in the United States, often led by trade groups, (17) has arisen to champion the right of each owner to the "highest and best use" of his or her property in the economic sense, transforming the property into something more valuable than its natural state (again, the Transformative Economy). (18) Drawing upon Locke, property rights activists equate unfettered ownership of property with liberty. (19) In response to cases encouraged by the movement, the current Supreme Court has, in a dozen years, underscored the sanctity of private property lines and the rights of owners to some economic use. (20) Resurrecting cases from the Substantive Due Process Era thought to be extinct after the New Deal, (21) the current Court majority has shifted to the government the burden of justifying regulation in the real property and land use subsets of economic regulation and raised "takings jurisprudence" to the fore in the deliberations of legislative and regulatory bodies. (22) However, Justice Scalia exempted from his "total regulatory takings" analysis historic state law property and nuisance doctrines. (23)

   Converging with the Lucas line of cases in the property law subset are those that have begun to expand the constitutional dimension to the rights of receptors to be free of conditions generated on other properties. In the 1990s, agriculture adopted methods of raising livestock, such as hogs, through concentrated animal feedlots (CAFs) that radically magnified the amount of animals, manure, odor, and water quality issues relating to farmland. (24) The Iowa Supreme Court, in Bormann v. Board of Supervisors, (25) addressed the phenomenon and invalidated the state's Right-to-Farm Act, (26) which provided agricultural operations with statutory immunity from nuisance actions by neighbors. (27) The court said that a nuisance imposed on other properties effectively subjected the receptor properties to an easement. (28) Because that easement was created by state action through the permitting process, the court reasoned that the imposition of the easement would effectively take the receptor's property without compensation. (29) The court concluded that the statutory immunity provision was therefore unconstitutional and the current United States Supreme Court declined to review that decision. (30)

   Another converging line of real property cases has begun to upgrade nuisance and trespass law to modern scientific realities. In cases such as Martin v. Reynolds Metals Co., (31) Borland v. Sanders Lead Co., (32) and Bradley v. American Smelting & Refining Co., (33) the Oregon, Alabama, and Washington Supreme Courts, respectively, found a trespass where chemicals invisible to the eye invaded the airspace and land of the receptor property. (34) This analysis dashed the aged "dimensional test," which since the Industrial Revolution had effectively meant "out of sight, out of mind" by denying the right if the trespass was not visible. (35) Given current scientific knowledge about transboundary migration of materials (even odors), energy, sound, and light, the Alabama court asked rhetorically whether there could be any nuisance that was not also a trespass. (36)

   The notion of real property is of course a three-dimensional construct, composed of surface rights, subsurface rights, and airspace. By definition, the property adjacent to any side of the solid geometric figure--which is any given private property--is either private or public property. (37) As Paul Simon put it: "One Man's Ceilin' Is Another Man's Floor." (38) Transboundary migration of materials from generator property into and onto other property is a classic, concrete example of a phenomenon economists call "externalities" (or "spillover"). (39) The costs of containing or disposing of whatever material, usually waste, involved is shifted to others (receptors) and not borne by the generator of the substance or condition. (40) The generator saves disposal and containment costs, and the receptors pay in crop loss, health effects, cleanup costs, and diminished quality of life and property values. In cases such as Love Canal and Times Beach, Missouri, those impacts included closure of entire towns because approved chemicals were discovered in the soil and groundwater beneath the receptors' properties, which had been in the market for decades. (41) As Rose notes, "Landowners [are] accustomed to regarding their land as their property, but they simultaneously regard the adjacent air, water, and wildlife as goods that are free for the taking." (42)

   The tobacco cases (particularly those involving secondary smoke) (43) and litigation involving PCB, (44) dioxin, (45) Agent Orange, and underground storage tanks (USTs) (46) have highlighted the staggering costs--both to the individual and to the taxpayer--of ignoring the externalities. At the national level, the Environmental Protection Agency (EPA) and several northeastern states are seemingly revisiting the Civil War...