Owning Up to the Environment

Date01 October 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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT