William and Mary Law School

The Use and Abuse of Property Rights in Saving the Environment

James S. Burling

While freedom and property may be inseparable, the temptation to sacrifice one or the other to seemingly more critical societal goals is ever present. And when either one is threatened, so is the other. Yet, the temptation to yield either is an inexorable imperative of those who govern. In the United States, for example, the threat to security in the post-9/11 world has led to the Patriot Act, which some claim intrudes upon individual liberty and privacy of American citizens. Starting with the rise of progressivism and continuing through the post–New Deal era, the compulsion to reengineer society for the “common good” has been effected at great cost to originalist understandings of individual rights.

Another artifact of progressivism was the wide-scale adoption of zoning and other land-use controls, a trend that received its first major imprimatur of legitimacy in an opinion written by the conservative Supreme Court Justice George Sutherland, in Euclid v. Ambler. When it comes to the transfer of the control over established rights in property and wealth, nothing has come close to the revolution engendered by the widespread adoption of zoning and land use controls in the United States. Where land use decisions were once exclusively made by owners of the land, subject only to the proscriptions against creating common-law nuisances, the decisions rest today in myriad boards, commissions, and regulatory agencies at the local, state, and federal level, all of whom have one or more hands in the decision-making process. This curtailment of an individual’s liberty to make choices over the use of property is the functional equivalent of the impressment of various easements and negative covenants on the property. Thus while neighbors could once have voluntarily negotiated the terms of neighboring land uses through easements containing, for example, height or density restrictions, in the new zoning world these same restrictions are imposed on a broader scale by political bodies. Moreover, these governmental bodies can and often do use this power to leverage exactions, fees, and other direct wealth transfers from owners to government.

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1 BRIGHAM-KANNER PROPERTY RIGHTS CONF. J. 373 (2012)