Owning Up to the Environment

• Date: 01 October 2010

40 ELR 10994 ENVIRONMENTAL LAW REPORTER 10-2010

Owning Up to the Environment

by Daniel A. Farber

Daniel A. Farber is the Sho Sato Professor of Law and Chair, Energy and Resources Group, University of California at Berkeley.

It may seem paradoxical to suggest that propert y law can

shape constitutional doctrine, let alone that it can do so

in a pro-environmental direction. As every law student

learns, constitutional law trumps “ordinary” law such as

property law. Yet, constitutional doctrines have to operate on

facts—and those facts may be legal (“Has the government

invaded the plainti’s property rights?”) as well as physi-

cal. Changing the legal facts can change the constitutional

result. If we cannot directly persuade the U.S. Supreme

Court to make the constitutional machinery more “environ-

ment friendly,” we might be able to achieve similar results by

changing the raw materials that are fed into the machine. Or,

to use another metaphor, we may be able to change the legal

landscape in which constitutional doctrine operates.

“Property rights advocates” typically oppose environmen-

tal regu lation. Yet, property law actually ha s great potential

to support environmental protection.1 is Article will argue

that, rather than being a constitutional bulwark against

environmental regulation, certain kinds of property rights

can actually ease constitutional barriers created by current

Supreme Court doctrine. ese environmental property

rights (EPRs) are either rights to prevent environmental deg-

radation (such as conservation easements) or limited rights to

impair the environment (such as tradable pollution permits).

Among other possible benets, these property rights may

help nudge constitutional law in a more environmentally

friendly direction.2

1. As Carol Rose has observed, the “very public infrastructure that created a felt

need for environmental protection in the rst place is now being called upon to

satisfy that need, particularly in the form of new property regimes.” Carol M.

Rose, Big Roads, Big Rights: Varieties of Public Infrastructure and eir Impact

on Environmental Resources, 50 A. L. R. 409, 442 (2008). She astutely

added: “[W ]e scarcely have any choice except to meet this call by a robust

public infrastructure of newly modeled rights.” Id. Rose has also pointed out,

however, that environmental property regimes are not unproblematic. See

Carol M. Rose, Liberty, Property, Environmentalism (Ariz. Legal Studies, Dis-

cussion Paper No. 10-19, 2010), available at http://papers.ssrn.com/sol3/pa-

pers.cfm?abstract_id=1624933. It should not be assumed that environmental

property rights (EPRs) are always appropriate res ponses to specic environ-

mental problems, and even when they are, the proper design of EPRs requires

careful attention.

2. It is not surprising that recognition of these property rights may have constitu-

tional signicance. Constitutional law is often predicated on nonconstitutional

laws that dene property interests. For instance, in procedural due process

cases, state law typically determines the existence and contours of the per-

son’s entitlement. Only then does federal law determine whether that entitle-

At a fundamental level, EPRs change constitutional out-

comes because they allow courts to see connections and

dimensions of value that are otherwise less accessible to the

legal system. When EPRs empower individua ls to prevent

environmental degradation, they bring into concrete legal

form the inchoate connections that exist between all of us

and the environment. When other EPRs convert a n envi-

ronmental improvement in one location into a marketable

asset, they help courts “see” that part of the value of prop-

erty is its ability to produce environmental services (which

are indirectly compensated when the EPR is sold). A cap on

pollution helps courts see that pollution is a collective prob-

lem involving the management of an important resource, not

simply restraint on individual polluters.

In this way, intangible environmental values are reied as

property interests, making it harder for judges to avoid rec-

ognizing their reality. is recognition, in turn, ca n change

the outcome of some constitutional issues. us, EPRs can

change the framing of constitutional cases and thereby

impact outcomes.3

As a prelude to the analysis, Part I surveys environmental

property rights. e remainder of the A rticle explores how

EPRs could aect outcomes in key areas of constitutional

doctrine: Article III standing, tak ings law, and the scope of

the federal commerce power.

With respect to each of these three constitutional issues,

the basic logic is quite simple:

 Standing. A key element of standing is “injury-in-fact.”

Injuries can harm property interests as well as personal

ones. us, possession of an EPR can provide a basis for

standing, with the loss of va lue to the EPR registering

the injury-in-fact.

  To determine whether property has been

taken without just compensation, we must rst know

what property interests the owner originally had and

what the owner is left with. EPRs that are held by third

parties ca n subtract from the rst category; EPRs that

are granted the property owner can add to the second

ment qualies as a property interest sucient to trigger due process, and if so,

whether due process has been provided. See Bd. of Regents v. Roth, 408 U.S.

564, 577 (1972).

3. Cf. R H. T  C R. S, N: I D

A H, W,  H (2008) (arguing that reframing de-

cisions can improve outcomes in a variety of contexts).

     

Houweling, Andrea Peterson, and Carol Rose for helpful comments.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.