Land Use Regulation: The Weak Link in Environmental Protection

Abstract: Professor William Rodgers is one of the handful of legal academics who have shaped and influenced environmental law since it was created out of whole cloth in the late 1960s. The staggering quantity, quality, breadth, and creativity of his scholarship are perhaps unrivaled among his peers. It is easy to criticize the gap between the environmental problems that society faces and the inadequate legal tools and institutions that we have created to confront them. Professor Rodgers has always been able to see both the deep flaws in environmental law and the possibilities for more responsive legal regimes. "I come no more to make you laugh," William Shakespeare, Henry VIII, Prologue. I. INTRODUCTION: PROPERTY IN LAND, NOT GREENED TO THE SAME EXTENT AS AIR AND WATER The sustainable use of land is crucial to the future success of many environmental initiatives. We recognize that the planet consists of three interrelated natural resources: air, water, and soil. Of the three, land has remained more resistant to environmental protection duties compared to the other two planetary life support systems, air and water. The regulation of private land use to achieve environmental protection objectives remains the weakest link in modern environmental law.1 Many of the major environmental challenges such as the control of nonpoint source water pollution, the conservation of biodiversity, and the limitation of automobile emissions, including carbon dioxide, are at the core of land use regulation problems. Yet, in the main, we continue to develop and abuse land, regardless of environmental stresses that development causes. As environmental protection once again rises on the political agenda, the need to address the gap between land use regulation and environmental protection is becoming more critical; the regulatory gap impedes or cancels much of the progress that we have made to improve the conditions of our air sheds and watersheds-let alone confront the linked challenges of biodiversity conservation and adaptation to global climate change. The reasons for the gap are multiple. The mismatch between physical problem areas and the crazy-quilt and increasingly dysfunctional overlay of political jurisdictions is supported by a deep-seated resistance to land use regulation. This contrasts with the wide-spread, if superficial, acceptance for the regulation of air and water. These factors are reflected by the difference in the property law regime for land versus that of air and water. Air and water are and always have been common property resources, and users have never had any expectation of exclusive control. Regulation simply canceled the custom of using them as sinks, but the state "took" no property from polluters because there were never firm common law rights to degrade air. In addition to the limitations imposed on air and water pollution by the doctrine of nuisance, the right to use water has always been an incomplete one.2 Land is another story: it has resisted heroic academic efforts to green it. The United States has successfully carved up the heritage of our land base into a series of private, exclusive entitlements,3 limited federal control largely to retained public lands, and enshrined the idea that land should be controlled at the lowest level of government, if at all. This process began with the English settlement in New England, and it continues unabated. Western property law has a fundamental bias toward the exploitation of all natural resources, especially land. The legislative process has generally operated-at least until recently-to reinforce the expectation that there will be few limits on resource exploitation. Our property law is a product of the legacy of late Roman legal thought and remains rooted in the idea of exclusive dominion subject only to the duty not to cause a nuisance. For example, this view lies behind the Supreme Court's dismissal of the argument that the purchaser of highly regulated wetland property assumes the risk of development denial with the quip, "[t]he [s]tate may not put so potent a Hobbesian stick into the Lockean bundle. …