The value of the services provided to human societies by natural ecosystems and biogeochemical cycles has recently been the topic of discussion and research. Here I review some of the basic economic principles necessary for understanding some of the questions that arise in this area. I argue that even with the best possible data and scientific understanding, the sense in which economists can value nature's services is limited. I also argue that valuing these services is much less important than providing incentives for their conservation, and that valuation and providing incentives for conservation are quite different. Valuation is neither necessary nor sufficient for conservation, whereas providing the right incentives is.

Today I am starting a 4-part series on ecosystem services.  Ecosystem services are the services that nature provides to humans, society, and the economy.  Research by scientists, economists, and public policy specialists has demonstrated that ecosystems provide critical and extremely valuable services that not only support life generally but also contribute to the functioning of our society and economy.  However, market, public policies, and legal doctrines tend to under-value these ecosystem services.

The concept of ecosystem services raises a variety of interesting questions:  Should we be attaching monetary values to nature and treating nature’s functions and processes as market commodities?  Does the concept of ecosystem services allow for eco-centric (i.e., non-human) values and non-economic benefits to humans?   Is it even possible to assign economic values to ecosystem services in any meaningful or useful way?  How can legal, political, economic, and social institutions incorporate ecosystem services values into their decision making processes?

Carol Brown, a law professor at the University of North Carolina Law School, is a young scholar of emerging importance in property law and the environment.  One of the themes of this blog is the reconceptualization of property rights and interests to address ecological sustainability and the environment’s carrying capacity.  Professor Brown has written several valuable articles in this area.  I have provided links and abstracts for two of these articles, below:

1) Carol Necole Brown, A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements. U of Alabama Public Law Research Paper No. 08-07, Available at SSRN: http://ssrn.com/abstract=881868 

Abstract:     

For more than a century, conservation easements have been used in the United States to maintain open space or protect the environment. Such easements produce a public good. They increase the amount of protected landscapes by preserving property encumbered by easements from private development or consumption while simultaneously allowing grantors the flexibility to negotiate the retention of development rights tailored to meet the grantors' needs.  My thesis is that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief to enforce conservation easements and to sue for damages when they are violated. More specifically, private parties should have standing to defend perpetual conservation easements. A common law property interest would be analogous to the third-party right of enforcement created by the Uniform Conservation Easement Act ("UCEA") and codified by many states in their state statutes.

It is not my contention that either grantors, holders, or society in general should be bound by a perpetual conservation easement restriction forever. Some degree of flexibility to reflect changing societal needs is prudent. When measuring the appropriate moment in time to modify or terminate a perpetual conservation easement because of changed conditions, the interests of the larger society should be represented in the calculus. Conferring private-party standing would allow these interests to be represented.

My Article provides an efficiency and social justice critique. First, in Part II, I briefly describe the history and rationales underlying the creation and perpetuation of conservation easements. I also discuss the close relationship between preservation and a strong private property regime. Second, in Part III, I discuss challenges to perpetual conservation easements, the doctrine of changed conditions, as well as the importance of private-party enforcement rights to the defense of conservation easements. Next, in Part IV, I consider efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions, concluding that private parties should have a recognized, common law property interest in the conservation easement. Then, in Part V, I broaden my analysis of conservation easements to demonstrate that decentralizing ownership interests in property by enforcing the decisions of property owners to burden their property with perpetual conservation easements is consistent with a democratic property system. Finally, in Part VI, I discuss objections to my proposal and alternatives to aggressively defending perpetual conservation easements against challenges pursuant to the doctrine of changed conditions. I conclude that my proposals articulated in Parts IV and V will result in efficient and appropriate levels of conservation while promoting decentralization of private property ownership.

2) Carol Necole Brown,Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law. U of Alabama Public Law Research Paper No. 894088, Available at SSRN: http://ssrn.com/abstract=894088

Abstract:     

American water law reflects the diverse geography and population patterns of our country. The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources. This Article's thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma. I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare, even minimally.

In the Article, I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine. I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine. Additionally, I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept. I use the recent United States Supreme Court case Kelo v. Town of New London to illustrate the similarities between the Court's "traditionally broad understanding of public purpose" in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine. My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this country's approach to water use and conservation in the arid west.

Patty Salkin, a well known national expert in land use law, continues to come out with new publications on smart growth and land use.  Local communities everywhere are seeking new ideas about how to address climate change, natural disasters, barriers to healthy lifestyles, and the environments of low-income and minority communities (environmental justice).

The following are 4 valuable publications that address various aspects of the intersection between smart growth and land use planning and regulation. Incidentally, Salkin presented the paper on land use law and active living at the Children, Nature, and Land Use program at the University of Louisville’s first Symposium on Law, Ethics, and the Life Sciences in Fall 2007.  The program on children and the environment was sponsored by the University of Louisville’s Center for Land Use and Environmental Responsibility.

1) Patricia Salkin, Smart Growth and the Greening of Comprehensive Plans and Land Use Regulations (July 17, 2008).  Available at SSRN: http://ssrn.com/abstract=1162499 

Abstract: 

    
Global warming, climate change, reducing greenhouse gas emissions, reducing the carbon footprint, and going green are just some of the buzz words in the news over the last two years that have captured the attention of lawmakers and policymakers at all levels of government. In Congress, lawmakers have proposed, among other things, mandating standards to reduce greenhouse gas emissions, and governors across the country have announced myriad programs designed to encourage the use by governments of green products, the construction of green buildings, and the offering of a combination of tax incentives and grants for private developers and other members of the public who develop and install various renewable energy products.

However, it is initiatives at the local government level that have the greatest potential for most quickly and most efficiently slowing the pace of global warming. This is because local governments are the critical decision-makers in how communities use and conserve key resources. Municipalities serious about curbing emissions as well as energy and water usage within their communities, to both combat global warming and to preserve the immediate environment, have found many successful ways to implement plans that reduce the strain on environmental resources. Local governments have begun to incorporate principles and goals of sustainability and carbon reduction into comprehensive land use plans. This paper begins to examine the elements of a "green audit" for local comprehensive plans and land use regulations.

2) Patricia Salkin, Sustainability at the Edge: The Opportunity and Responsibility of Local Governments to Most Effectively Plan for Natural Disaster Mitigation (July, 08 2008). Environmental Law Report, Vol. 38, p. 10158, March 2008.  Available at SSRN: http://ssrn.com/abstract=1157153 

Abstract:

  
The traditional link between disaster mitigation and local land use planning was highlighted by the Disaster Mitigation Act (DMA) of 2000, which emphasizes the need for mitigation coordination among state and local entities. This article looks at the role of local governments in natural disaster mitigation, specifically, how local governments may use traditional land use powers, such as the police power, to protect against disasters. The paper cites DMA provisions that offer financial incentives to states that work with local governments to plan for growth and disasters; and sets forth case studies to illustrate how states can create vertical links among federal, state, and local entities to coordinate disaster mitigation strategies.


3) Patricia Salkin and Amy Lavine, Land Use Law and Active Living: Opportunities for States to Assume a Leadership Role in Promoting and Incentivizing Local Options (October 26, 2007). Rutgers Journal of Law and Urban, Policy Vol. 5, 2008.  Available at SSRN: http://ssrn.com/abstract=1025722 

Abstract: 

    
Obesity, asthma and nutrition are just three public health challenges facing children and adults that can be addressed through land use planning and zoning. States must take a leadership role in providing statutory authority and guidance for local governments to enact and implement laws and ordinances designed to promote active living. Land use policies, transportation policies, redevelopment policies and open space and recreation policies are key areas where reform is needed. This paper highlights exisiting examples from various states and offers lawmakers, policymakers and advocates options for reforming state laws to incentivize and influence local actions.

4) Patricia Salkin, Intersection Between Environmental Justice and Land Use Planning. Planning and Environmental Law, May 2006.  Available at SSRN: http://ssrn.com/abstract=1029861

Abstract:

Environmental justice goes to the core of traditional land use decisions: choosing sites for locally unwanted land uses (geographic equity); the process for deciding where to site these unwanted land uses, including the location and timing of public hearings (procedural equity); and sociological factors, including which groups hold the political power inherent in land use decisions (social equity). This articles discusses the various tools in land use planning and zoning that can used to promote and implement environmental justice principles.

Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.

This blog posting is the sixth in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I am concluding this series with 3 excellent and thought-provoking articles about water rights, which have important implications for land development and growth:

1) Christine A. Klein, "On Integrity: Some Considerations for Water Law" . Alabama Law Review, Vol. 56, p. 1009, 2005 Available at SSRN: http://ssrn.com/abstract=805964 

Abstract:    

In 2003, the federal government issued a stark warning that parts of the nation are running out of water, due primarily to explosive population growth in arid areas. The report predicted a substantial likelihood that water supply crises would occur within the next twenty years in Denver, Los Angeles, Phoenix, Salt Lake, San Diego, and numerous other areas.

But, the problem is not confined to the west. Sprawling urban growth and significant pollution in some eastern areas are causing a simultaneous increase in demand and reduction in supply. The traditional response to shortage has been a quest for more water at all costs, leading to bitter and even violent conflict among competing water users. Even as the nation experiences this impending water crisis, we are also experiencing a crisis of a different kind. The corporate scandals and multi-billion dollar accounting frauds exposed in the 1990s have caused investors to lose faith in the integrity of financial institutions. Might there be a relationship between these two types of crisis, linked by the concept of integrity?

This article offers the notion of hydrologic integrity - basic principles of science, ecology, and social equity - as a touchstone for resolving intractable problems of water policy. Three case studies are presented, including the restoration of the Everglades wetland ecosystem (as considered by the United States Supreme Court in 2004 in South Florida Water Management District v. Miccosukee Tribe of Indians); the evolving fight over transbasin diversions from northern to southern Florida; and the stalled negotiations over the Apalachicola-Chattahoochee-Flint River Basin, which is likely to be presented to the Supreme Court for resolution. Applying principles of aquatic integrity to these case studies, this article suggests a new way for thinking about old water problems. 

2) Sandra B. Zellmer and Jessica Harder, "Unbundling Property in Water" . Alabama Law Review, 2007 Available at SSRN: http://ssrn.com/abstract=1010617 

Abstract: 

    
The United Nations Intergovernmental Panel on Climate Change predicts that, in the foreseeable future, climate change will exacerbate water problems worldwide. In the United States, we are likely to see more severe flooding, more frequent droughts, and a rush to secure legal rights to water supplies. Sustainable management of water resources for present and future generations will become all the more imperative as we face increasing pressure on limited supplies.

The quest for sustainable management has stimulated a movement championing greater recognition of private property rights to attain efficient use and allocation of water. The World Bank and the International Monetary Fund have encouraged nations in the developing world to conform to a market paradigm by privatizing their water supplies. Affected communities are often less than enthusiastic about privatization. Throughout the world, attempts to privatize water resources have triggered a “morality play of rights versus markets, human need versus corporate greed.”

The controversy is not limited to developing countries. One of the most divisive issues in contemporary natural resources law in the United States is whether interests in water are property. Absent legally recognized property rights, water markets are unlikely to thrive. According to the Restatement of Property, the term “property” describes “legal relations between persons with respect to a thing.” Of course, not all economic relationships give rise to property rights. Judicial treatment of water is all over the map. The Court of Federal Claims awarded California irrigators millions of dollars as compensation for a taking of their property rights when flows were curtailed to protect endangered salmon, but a different panel of the very same court subsequently took that opinion to task for failing to consider whether interests in water are property under the Fifth Amendment. Likewise, other federal and state courts have reached contradictory results.

To unbundle the concept of property in water, this article critiques the conflicting approaches to water rights. It uses a web of interests as a strong yet flexible metaphor for property, complemented by a patterning definition representing elemental strands of the web. If the interest in question is not an irrevocable interest in the exclusive possession and use of a discrete, marketable asset, it is not takings property under the Fifth Amendment. Viewed through this lens, it becomes clear that interests in water in most jurisdictions are not takings property, although they may be a limited form of property for purposes of water transfers and due process or common law claims.

3) Robin Kundis Craig, "A Comparative Guide to the Eastern Public Trust Doctrine: Classifications of States, Property Rights, and State Summaries" . Penn State Environmental Law Review, Vol. 16, No. 1, pp. 1-113, Fall 2007 Available at SSRN: http://ssrn.com/abstract=1008161 

Abstract: 

    
Public trust doctrine literature to date has displayed two distinct tendencies, both of which limit comprehensive discussion of the American public trust doctrines. At one end of the spectrum, articles focused on broader legal principles tend to discuss the public trust doctrine, as though a single public trust doctrine pervaded the United States. At the other end, articles focus on how one particular state implements its particular state public trust doctrine. Few articles have grappled with the richness and complexity of public trust philosophies that more comparative approaches to the nation's public trust doctrines - emphasis on the plural - can reveal.

This Article seeks to begin to restore that sense of comparative complexity to the discussion of public trust principles. It focuses on the public trust doctrines of 31 eastern states - all of the states east of the Mississippi River, plus the five states - Minnesota, Iowa, Missouri, Arkansas, and Louisiana - bordering the western bank of the Mississippi River. Moreover, it includes in an Appendix state-by-state summaries of the public trust doctrines in each of the 31 eastern states examined.

These eastern states provide a particularly rich subset of states for public trust discussion purposes. At its most basic, a state's public trust doctrine outlines public and private rights in water by delineating five definitional components of those rights: (1) the waters subject to state/public ownership; (2) the line or lines dividing private from public title in those waters; (3) the waters subject to public use rights; (4) the line or lines in those waters that mark the limit of public use rights; and (5) the public uses that the doctrine will protect in the waters where the public has use rights. The history of the eastern states' public trust doctrines has led to multiple variations in how these states define and assemble these five components. In particular, far more often than is the case in the later-settled West, public trust use rights in the East intrude - and for practical purposes always have intruded - upon privately owned riparian and littoral property.

Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the fifth in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I refer to an excellent article by the University of Utah’s Lincoln Davies on “assured supply” laws that condition approvals of land use projects on developers showing that they have reliable supplies of water to support the new development.  Professor Davies explores the ways by which these laws can discourage or encourage sprawl, depending on the circumstances and how the laws are designed.

Lincoln Davies, "Just a Big, 'Hot Fuss'? Assessing the Value of Connecting Suburban Sprawl, Land Use, and Water Rights Through Assured Supply Laws," 34 Ecology Law Quarterly 1217 (2007): Available at SSRN: http://ssrn.com/abstract=1132512  

Abstract:

States and localities increasingly recognize the need to link land use and water supply planning. As the populace grows and sprawl continues, the strain on available natural resources, particularly water, makes this recognition all the more important. This Article addresses an increasingly common type of this planning link "assured supply" laws that require developers to prove they have secured adequate water stock before commencing construction. The Article performs a qualitative analysis of the potential benefits and costs of such laws and finds that, on balance, assured supply laws provide at least five significant benefits: consumer protection, greater holistic project- and agency-level planning, improved efficiencies in water rights allocation, and increased water conservation. Notably, however, these laws appear to do very little to diminish sprawl and, if designed incorrectly, may actually exacerbate it. The Article then extracts five dimensions around which localities might design their assured supply laws to maximize their benefits and minimize possible costs, concluding that such laws are most likely to deliver optimal benefits when they are (1) mandatory, (2) stringent, (3) statewide, (4) broadly applicable, applying to more than only large projects, and (5) interconnected with broader land-water and environmental planning mechanisms.

Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the fourth in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide links and abstracts of articles that explore ways that federal law has been misused or unused to regulate land use and development as they relate to water resources.                 

1) Christine A. Klein and Sandra B. Zellmer, "Mississippi River Stories: Lessons from a Century of Unnatural Disasters" (August 20, 2007). Available at SSRN: http://ssrn.com/abstract=1010611 

Abstract:

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.

Setting forth what we call the theory of “double takes,” this article argues that property owners in flood-prone areas “take” taxpayer dollars through two sometimes-overlapping mechanisms. First, a package of subsidies - including flood control structures, federal flood insurance, and after-the-fact disaster relief - enables and even encourages construction in high-risk areas. Second, landowners denied permits to develop floodplain and coastal property can “take” federal dollars in the form of compensation awarded under the Fifth Amendment. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are “valueless” in their natural state - a dangerous misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

2) Jess R. Phelps, "A Vision of the New Deal Unfulfilled? Soil and Water Conservation Districts and Land Use Regulation," 11 Drake Journal of Agricultural Law 353 (2006). Available at SSRN: http://ssrn.com/abstract=979108 

Abstract:

This Note evaluates the role of soil and water conservation districts as a part of the environmental component of New Deal era policymaking. This Note is specifically focused on exploring the nature of the regulatory authority that was granted to the conservation districts at the time most states passed the district enabling legislation and the role this authority play in addressing conservation problems on the local level. States granted districts two types of authority: projects and regulatory. Projects power - or the ability of the districts to promote conservation through demonstration stations, and educational efforts has been the dominant activity of the districts throughout their history. On the other hand, regulatory authority - the ability to pass local regulations governing land use - has rarely been utilized. This Note addresses the reasons this authority was not fully utilized and the forces that opposed the utilization of this district regulatory authority. In conclusion, this Note follows a modern use of district regulatory authority in Montana's Rosebud Conservation District and provides a framework for expanded use of regulatory authority in addressing local environmental problems.

Louisville Courier-Journal environmental reporter Jim Bruggers is a first-rate environmental reporter.  Moreover, he has a most informative and useful blog, which is http://www.courier-journal.com/blogs/bruggers/blog.html.  It’s a thoughtful source of environmental news not only in Louisville but also nationally and globally.

Here are some more details on Jim and his blogging activities, fromhis blog site: 

“As far as he knows, Courier-Journal reporter James Bruggers is about the only journalist covering the environment full time for a Kentucky newspaper, television station or radio station.  A native of Michigan, he lived in the West for more than two decades before coming to the C-J in 2000. He studied journalism, forestry and environmental studies at the University of Montana.

In this blog, Bruggers shares news items and observations from inside the environment beat locally, regionally and globally. He calls your attention to new studies, reports and events. And he goes behind the headlines to answer questions and explain some of his own coverage in the newspaper.”