Three Stories About Nature: Property, the Environment, and Ecosystem Services - Keith H. Hirokawa

• Publication year: 2011

Three Stories About Nature: Property, the Environment, and Ecosystem Services

by Keith H. Hirokawa*

I. Introduction

Property is the process of dividing the world into bits that may be subjected to private control.¹ As such, how we understand the world, its characteristics, and its processes is very important. If, for instance, we think of water as an infinite resource that serves growth needs, we might not be concerned with how that resource is acquired, used, or even wasted. On the other hand, if we believe that water is a scarce and essential resource, we may find that an allocation scheme bears the weight of accomplishing many social and economic objectives. Nature matters because our understanding ofthe world matters to the manner in which we construct rights to property. Of course, at some point, the converse also obtains: how we conceive of property influences what we enjoy, fear, and want in the world. A new understanding of nature may

* Assistant Professor of Law, Albany Law School. Ursinus College (B.A., 1994); University of Connecticut School of Law (J.D., 1998); Lewis and Clark Law School (LL.M., 2001); University of Connecticut, Department of Philosophy (M.A., 2003). Member, State Bars of Washington and Oregon.

The Author would like to thank several people for their insightful comments on earlier drafts of this Article, including Timothy Mulvaney, Robin Kundis Craig, Marc Poirier, Katrina Kuh, and Dorothy Hill. The Author appreciates the efforts of the entire faculty at Albany Law School for comments received during a workshop presentation of this Article. Thanks also go to Anna Binau, Charles Gottlieb, and Nikki Nielson for their research assistance. Finally, this Article greatly benefitted from comments received at the 2011AALS Annual meeting as a selected paper in the "New Voices on Cutting Edge Issues in Natural Resources and Environmental Law" call for papers, cosponsored by the AALS Sections on Natural Resources and Environmental Law.

1. See Eric T. Freyfogle, The Land We Share: Private Property and the Common Good 168 (2003).

542 MERCER LAW REVIEW [Vol. 62

be resisted precisely because it undermines the persuasiveness of the way we protect possessions as property. Property and nature are codependent, but their connection is an indeterminate one.

When we view both nature and property as social constructions,² it becomes apparent that the terms "property," "environment," and the more recent description of nature based on "ecosystem services" can often be used interchangeably. At least, it should not be surprising that these terms share some common ground, as they share the same referent(s). Yet advocates from different perspectives certainly do not agree on the meaning of these terms or the values that they invoke, and it is to these divergent perspectives that this Article is addressed. These terms, whether considered synonymous or divergent, reflect on the contingency of an inevitable and ongoing clash of values that results when we allow rights to vest in natural things.

With this in mind, consider a slight modification of the rivalry between the two notorious hunters, Pierson and Post.³ In this modified story, Pierson and Post remain on the hunt. However, at some point in the pursuit, Post recognizes that his efforts are not bearing fruits. Post shoulders his gun, leashes his hounds of imperial descent, and turns his efforts to more constructive projects (whether he intends to abandon the hunt we will never know). He digs up and destroys the fox's lair, levels the forest, relocates nearby streams, and forcefully removes all fowl and other creatures relied upon by the fox for food. The fox goes hungry, thirsty, and unprotected from the elements. The fox soon grows close to death. Yet just before the fox dies from these "natural" causes, Pierson spots the fox out in the open, springs, then strikes the fox with a mortal blow and leaves with fox in hand. Post, of course, sues for conversion. As the story goes, the success of Post's claim depends on whether his

2. Peter L. Berger & Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge 183 (Anchor Books 1967) (1966).

Man is biologically predestined to construct and to inhabit a world with others. This world becomes for him the dominant and definitive reality. its limits are set by nature, but once constructed, this world acts back upon nature. in the dialectic between nature and the socially constructed world the human organism itself is transformed. in this same dialectic man produces reality and thereby produces himself. Id.; see also William Cronon, Introduction: In Search of Nature, in Uncommon Ground: Toward Reinventing Nature 23, 52 (William Cronon ed., 1995); Anna Peterson, Environmental Ethics and the Social Construction of Nature, 21 Envtl. Ethics 339, 346 (1999); Mick Smith, To Speak ofTrees: Social Constructivism, Environmental Values, and the Future of Deep Ecology, 21 Envtl. Ethics 359, 375 (1999).

3. See Pierson v. Post, 3 Cai. 175 (N.Y. Sup. Ct. 1805), for a discussion of the original rivalry.

2011] THREE STORIES ABOUT NATURE 543

actions were sufficient to reduce the fox to "property" and vest an entitlement.⁴

The force of Post's claim largely depends on the manner in which law constructs boundaries and apportions the world into units of ownership. The premise for this claim of contingency, of course, is that property always appears to be in a state of flux, which is reflected in its constant process of negotiation with and adaptation to new social needs and systemic challenges.⁵ In this process, the meaning of property is pulled and pushed, not only because property is a legal construct (and law generally struggles under such tensions)⁶ but also because property influences how we understand ourselves both individually and as we relate to others.⁷ The very idea of property is fundamental and foundational, but it is also dependent upon purposes we want it to serve. It is within this context of contingency that this Article offers three different possible resolutions to the modified dialogue between Pierson and Post. These are not just different stories about different laws (which, of course, they are): the three answers-Property, the Environment, and Ecosystem Services-propose different stories about nature and how law treats things in the world, and each illustrates its own legal construction of nature.⁸

4. Id. at 177.

5. See generally Craig Anthony (Tony) Arnold, The Reconstitution of Property: Property as a Web of Interests, 26 Harv. Envtl. L. Rev. 281, 291-95 (2002).

6. Eric Freyfogle writes,

Private property is an organic, evolving institution, as the historical record makes clear to anyone who reads it fairly. over the generations, the rights and responsibilities of land ownership have shifted considerably, and legitimately so, given that private property is, at root, chiefly a tool that lawmaking communities use to promote their well being. As values, understandings, and circumstances all change, so too should the mix of rights and responsibilities that landowners possess. Eric T. Freyfogle, Private Rights in a Connected Land, in Wet Growth: Should Water Law Control Land Use? 315, 328 (Craig Anthony (Tony) Arnold. ed., 2005).

7. See Margaret Jane Radin, Reinterpreting Property 191-201 (1993) (linking property to identity and self-actualization); see also Amy Sinden, The Tragedy of the Commons and the Myth of a Private Property Solution, 78 U. Colo. L. Rev. 533, 539 (2007) ("What we call things and how we categorize them matters because it influences how we think about them.").

8. Although it might be obvious, it is probably worth mentioning that the contingencies of property will tend to bleed into these stories as well, suggesting that there may be no single description of the relationship between property and nature. While this point may appear to some to be trivially true, it is important to note that our stories often locate only the starting point for an analysis of how law constructs a reality that may be unintended-a point made in great detail by Margaret Jane Radin in her identification of the personhood

544 MERCER LAW REVIEW [Vol. 62

The thesis of this Article is that ecosystem services-the "wide range of conditions and processes through which natural ecosystems, and the species that are part of them, help sustain and fulfill human life"⁹-will have a dramatic impact on the relationship between property and nature, and this impact may be best understood by examining how the Ecosystem Services story diverges from the legal and rhetorical commitments made in the Property and Environment paradigms. To introduce the Property story, Part II of this Article relies on the rule of capture,¹⁰ which occupies a special place in understanding the things in nature and how they have historically been subordinated to human use. Under the rule of capture, the natural world is divided into property and potential property.¹¹ The argument made in this Part is that the Property description of nature emphasizes the importance of boundaries to delineate claims to things in the world and ascribe value to them. To introduce the story ofthe Environment, Part III ofthis Article considers environmental and natural resource laws as efforts to transition law into valuing nature by reference to something other than its potential utility. The argument made in this Part is that despite the dramatic changes reflected in the Environment, the transition from Property was made easier by retaining the central importance of boundaries in the world and by applying that notion to distinguish Property from the Environment; but as a consequence, nature took on the role of a property defect.

The remainder ofthis Article concerns the manner in which the trends toward an Ecosystem Services approach converge or conflict with past paradigms of nature. Accordingly, Part IV of this Article introduces Ecosystem Services as a...