Craig Anthony (Tony) Arnold's blog

Clean, Wet, and Smart, Part I

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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 begins 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 to 3 articles that I have written on the subject: 

 

1) Craig Anthony (Tony) Arnold, "Clean-Water Land Use: Connecting Scale and Function," Pace Environmental Law Review, Vol. 23, No. 2, p. 291, 2006. Available at SSRN: http://ssrn.com/abstract=1024265 

 

Land use and land development adversely affect water quality in many substantial ways. The current land use regulatory system is blamed for its failure to plan and regulate to protect water quality and watershed health, and a frequent suggestion is to move authority for land use planning and regulation to larger ecologically-based scales, such as watersheds, or to regional, state, or national agencies that can act on a watershed scale.

Despite the allure of these proposals, careful study of the scales and functions of watersheds and the scales and functions of land use presents a nuanced picture of both watershed and land use dynamics, suggesting that watershed institutions might be best suited for watershed planning, technical assistance, facilitation of intergovernmental cooperation, and provision of resources and information, while local governments will continue to be best suited to engage in generalized planning, zoning, permit decisions, and other traditional regulatory functions.

This article discusses the impact of land use on water quality, and then explores the scale and function of both watersheds and land use. It offers lessons about the geographic, functional, problem, and temporal scales of watersheds, and the functional, political, resource, and temporal scales of land use, as well as lessons about the legal scale of freedom and boundaries. Attempting to connect both the scale and function of watershed with both the scale and function of land use, the article recommends a hybrid regional-local model of watershed-based planning and regulation of land use.

 

2) Craig Anthony (Tony) Arnold, "Is Wet Growth Smarter than Smart Growth?: The Fragmentation and Integration of Land Use and Water." Environmental Law Reporter, Vol. 35, No. 3, p. 10152, 2005. Available at SSRN: http://ssrn.com/abstract=1040821 

 

The authority and regimes for controlling land use, water quality, and water use are highly fragmented, both internally and from one another. However, a growing body of evidence demonstrates that this fragmentation comes at great cost to natural and human environments, with increasing impacts of land use practices, water quality conditions, and water uses on one another. This article introduces a concept of wet growth that attempts to achieve some level of integration among these three inter-related aspects of law and public policy.

The Wet Growth concept is distinguished from the popular, yet vague, concepts of Smart Growth, which has failed to give sufficient attention to the water-related impacts of land development and use. The article describes examples of emerging efforts to achieve integration of land use and water regulatory policies. It summarizes the ideas and research of several leading scholars in a book on Wet Growth. The article makes a case for policy diversity in the integration of land and water practices, rejecting the desirability of any single model. Finally, it analyzes the role that local land use planning and regulation can play in achieving aquatically and ecologically sustainable land use practices.

 

3) Craig Anthony (Tony) Arnold, "For the Sake of Water: Land Conservation and Watershed Protection," Sustain: A Journal of Environmental and Sustainability Vol. 14, No. 16, 2006 Available at SSRN: http://ssrn.com/abstract=1089026 

 

Land conservation serves a critical function of protecting watershed health and integrity, which are necessary for healthy natural environments, human life, economic activity, and society. This article describes the various impacts of land use on water quality and watersheds.

Having documented land development's growing degradation of watershed functions, the article examines four methods of protecting water quality through land conservation. These four methods are land use planning and regulation, public land management, private land conservation, and changes in land-use behaviors and values. Analysis of legal tools and limits is supported by a case study of the Anacostia River watershed, one of the most degraded watersheds in the U.S. yet recently the object of diverse and substantial efforts to restore its waterways and manage land development practices.

The article concludes that no single method of land conservation is adequate to protect watersheds. Instead, a policy of policy diversity -- a polycentric model of land conservation and watershed protection -- will maximize changes towards more environmentally responsible land use practices. While the article is likely to be of interest to specialists in land use, property, environmental, and natural resources law and public policy, it can serve as a useful means of introducing students, policy makers, or members of the public to the varieties of land conservation methods or to the relationship between land use and water quality.

 

Keeping Up with the Virtual Landscape

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The following are a few other useful blogs that address issues at the intersection of land use and the environment: 

 

Law of the Land (Professor Patty Salkin’s blog from Albany Law School’s Government Law Center), http://lawoftheland.wordpress.com/ 

 

Planetizen (The Planning and Development Network), http://planetizen.com/interchange  

 

Environmental Justice Blog, http://environmentaljusticeblog.blogspot.com/ 

 

Center for Neighborhood Technology: Sustainable Communities – Attainable Results (a blog of the Center for Neighborhood Technology), http://weblog.cnt.org/ 

 

Land Use Prof Blog (run by Professor Paul Boudreaux of Stetson University College of Law), http://lawprofessors.typepad.com/land_use/ 

 

Green Building Law blog (run by Shari Shapiro, a Philadelphia attorney and LEED Accredited Professional), http://greenlaw.blogspot.com/ 

 

Smart Growth Around America (Smart Growth America blog), http://blog.smartgrowthamerica.org/?p=104 

 

American Rivers blog (run by the environmental group American Rivers), http://blog.americanrivers.org/wordpress/index.php 

 

 

 

The Gator Nation’s Land Use & Environmental Research

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In the next couple of weeks, I will be giving two presentations at the University of Florida’s Levin College of Law, which has an excellent environmental and land use law program (see http://www.law.ufl.edu/elulp/index.htm).  As I anticipate my visit to Florida, I note that the University is the source of much significant scholarship on issues related to the intersection of land use and the environment.  Below are abstracts of, and links to, 4 examples of the faculty’s works: 

 

1) Christine A. Klein, "The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming" Boston College Law Review (2007).  Available at SSRN: http://ssrn.com/abstract=967992:

 

Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council — the modern U.S. Supreme Court's seminal regulatory takings decision — this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own — forming what this Article calls the new nuisance doctrine. As this Article explains, nuisance is new in at least two important ways. First, it has taken on a new posture, evolving from defense, to offense, to catalyst for legislative change. Second, nuisance has taken on new substance, triggered in part by Lucas's explicit recognition that “changed circumstances or new knowledge may make what was previously permissible no longer so.

 

2) Danaya C. Wright & Scott A. Bowman, "Charitable Deductions for Rail-Trail Conversions: Reconciling the Partial Interest Rule and the National Trails System Act," William & Mary Environmental Law and Policy Review (2008), Available at SSRN: http://ssrn.com/abstract=1081655 

 

This article examines an undeveloped legal topic at the intersection of tax law and real property law: charitable deductions from income tax liability for donations of railroad corridors to be converted into recreational trails. The very popular rails-to-trails program assists in the conversion of abandoned railroad corridors into hiking and biking trails. But the legal questions surrounding the property rights of these corridors have been complex and highly litigated. In 1983, Congress amended the National Trails System Act to provide a mechanism for facilitating these conversions, a process called railbanking. In essence, a railroad transfers its real property interests in its corridor to a trail sponsor for interim trail use and retains a right to reenter in case rail service needs to be reactivated on the line. Thus, the dual purposes of the statute - interim trail use and rail preservation - are furthered by a process that prevents the corridor from being broken up and irrevocably lost. An important element of railbanking and trail conversion is the prospect for the railroads of a deduction from their income tax liability when they donate these corridors for public trail use. Recently, however, the Internal Revenue Service has begun to question the donations by invoking the so-called partial interest rule Should the IRS prevail in applying this rule, the deduction would be entirely disallowed under current Internal Revenue Code provisions. This article examines the intersection of these two areas of law and proposes ways the railroads can draft their trail use agreements to minimize the likelihood of being challenged by the IRS, and ways the IRS, the STB, Congress, and the railroads can work together to reconcile the conflict in these different laws. In the end, we believe that the rail preservation function is critical to the public welfare and that it is in everyone's best interest to further railbanking and interim trail use. But doing so requires careful drafting and perhaps regulatory changes to ensure that railroads do not unfairly take advantage of the tax system, while at the same time maintaining an incentive for railroad to railbank and offer their corridors for future public use. 

 

3) Mark Fenster, "Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions" (2006). Available at SSRN: http://ssrn.com/abstract=925911: 

 

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual's property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation's validity and the means by which the regulation attempts to meet the government's objective. Lingle's explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), two regulatory takings decisions that reviewed “exactions,” regulatory conditions placed on proposals to develop land. These decisions required courts to apply the heightened scrutiny of their “nexus” and “proportionality” tests to review not only the challenged condition's effects but also its validity and means. In a somewhat oblique final section of Lingle that could be dismissed as non-binding dicta, the Court characterized its exactions jurisprudence as a limited effort to protect owners from extortionate exactions that single out individual property owners and confiscate their land and right to exclude the public. Lingle explained that the Court's rigorous tests for exactions, and their focus on regulatory means, apply only when an exaction's effects constitute a clear taking of property.

Lingle's description of its exactions decisions left important matters open for debate - matters that this Article attempts to resolve. Lingle's narrow characterization of its exactions decisions is not dicta because Lingle aimed to provide a comprehensive, unifying explication of the entirety of the Court's takings jurisprudence; and even if dicta, Lingle repeats similar statements in recent decisions about the limited nature of Nollan and Dolan and therefore makes plain what the Court assumes it has already settled. Furthermore, when read as Lingle requires, Nollan and Dolan fit within the broader approach to the Takings Clause that the Court articulated in Lingle and its other Takings Clause decisions from the same term, San Remo Hotel v. City and County of San Francisco (2005) and Kelo v. City of New London (2005). A narrow understanding of Nollan and Dolan is thoroughly consistent with the Court's effort to establish an institutionalist approach to the Takings Clause that defers to the properly derived decisions of competent, settled institutions. Nollan and Dolan can be read narrowly because judicial enforcement of the federal constitution is merely one institutional check among a web of public and private institutions that constrain local regulatory discretion. The powerful constitutional protection that “nexus” and “proportionality” provide may be limited, but in their shadow public actors in state courts and legislatures and in local governments, as well as voters, property owners, developers, and homebuyers offer a more complex, responsive, and locally sensitive web of legal, political, and market controls than the broad, formal rules established in Nollan and Dolan.
   

 

4) Mary Jane Angelo, "Embracing Uncertainty, Complexity and Change: An Eco-Pragmatic Reinvention of a First Generation Environmental Law" (August 23, 2005). Available at SSRN: http://ssrn.com/abstract=788504: 

 

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, we are experiencing unprecedented declines in bird and wildlife species, as well as ecosystem services. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carryout its mission. Moreover, a number of lawsuits have been filed recently asserting that the registration of certain pesticides is in violation of the federal endangered species act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, such as the devastating impacts DDT had on predatory bird populations, which fueled the environmental movement of the late 1960's and early 1970's, largely have been ignored for the past 30 years. Only very recently has there been renewed interest in the ecological (as opposed to human health) risks posed by pesticides. Moreover, the explosion of pesticidal genetically modified organisms (GMOs) in agriculture has raised concerns regarding the novel risks to biodiversity posed by these new pesticides. Surprisingly, however, the primary federal statute governing pesticides, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), has not changed significantly with regard to ecological matters since 1972 and remains primarily a consumer protection statute not well suited for ecological protection. Moreover, the manner in which the Environmental Protection Agency (EPA) has implemented FIFRA has not kept pace with developments in our understanding of the uncertainty, complexity, and changing nature of ecological systems. This Article breaks new ground by being the first to use the new legal discipline of "eco-pragmatism" to analyze, and then reinvent, U.S. pesticide law to better protect ecological resources.

For years, environmental legal scholars have sought a middle ground between absolutist risk-based approaches to environmental regulation and cost/benefit analysis approaches. In the past several years, scholars have begun exploring the emerging field of eco-pragmatism - a dramatic new framework for environmental decision-making developed by Professor Daniel Farber - as a way to achieve a workable middle ground. Although a number of prominent legal scholars have analyzed eco-pragmatism in a general sense, none have attempted to apply an eco-pragmatic framework to any environmental pollution control law. This Article is the first to do so. This Article builds on Farber's work and the works of a number of other prominent legal scholars by first bolstering eco-pragmatism through consciously incorporating into it principles of ecological science, and then applying the strengthened eco-pragmatism to a long overlooked area - pesticide law. As the first attempt to actually apply eco-pragmatism to a field of environmental pollution control law, this Article represents an important step in the development of this area of legal theory. By analyzing current pesticide law as well as EPA's implementation of such law through an eco-pragmatic lens, this Article identifies areas of the law that are in need of revision and proposes revisions based on eco-pragmatic principles, which if implemented would greatly enhance our ability to protect critical ecological resources.

Pragmatic Environmentalism in Land Use

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As I mentioned in my last post, I am making a couple of exceptions to my normal practice of blogging about only those resources that can be downloaded for free.  The second book I recommend as great food for thought is: Ben Minteer’s The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006).  Minteer is a professor in the Human Dimensions of Biology Faculty in the School of Life Sciences at Arizona State University.  Trained in philosophy, Minteer has produced several works that transcend traditional disciplinary boundaries to tackle important questions about environmental ethics, conservation of nature, and democracy.  A description of The Landscape of Reform (from the book jacket) appears below: 

 

Ben Minteer offers a fresh and provocative reading of the intellectual foundations of American environmentalism, focusing on the work and legacy of four important conservation and planning thinkers in  the first half of the 20th century:

Liberty Hyde Bailey, a forgotten figure of the Progressive conservation movement;

urban and regional planning theorist Lewis Mumford;

Benton MacKaye, the forester and conservationist who proposed the Appalachian Trail in the 1920s; and

Aldo Leopold, author of the environmentalist classic A Sand County Almanac.

Minteer argues that these writers blazed a significant “third way” in environmental ethics and practice, a more pragmatic approach that offers a counterpoint to the anthropocentrism-versus-ecocentrism – use-versus preservation – narrative that has long dominated discussions of the development of American environmental thought.

 

Minteer shows that the environmentalism of Bailey, Mumford, MacKaye, and Leopold was also part of a larger moral and political program, one that included efforts to revitalize democracy, conserve regional culture and community identity, and reclaim a broader understanding of the public interest that went beyond economics and materialism.  . . . [He] considers two present-day manifestations of an environmental third way: 1) Natural Systems Agriculture, an alternative to chemical and energy-intensive industrial agriculture; and 2) New Urbanism, an attempt to combat the negative effects of suburban sprawl.  By rediscovering the pragmatic roots of American environmentalism, writes Minteer, we can help bring about a new, civic-minded environmentalism today.

 

Land Use Vitality: The Human-Nature Connection in Design & Development

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Although I normally blog about only those resources that can be downloaded for free, I am making an exception with this post and the next post in order to share what I view as two must-read books.  One of these must-read books is Stephen Kellert’s Building for Life: Designing and Understanding the Human-Nature Connection (Island Press 2005).

 

Kellert is the Tweedy Ordway Professor of Social Ecology at the Yale University School of Forestry and Environmental Studies, as well as the Co-Director of the Hixon Center for Urban Ecology.  The University of Louisville was fortunate to have Professor Kellert give the keynote lecture at a Fall 2007 symposium on Children, Nature, and Land Use, sponsored by the Center for Land Use and Environmental Responsibility.

 

Building for Life synthesizes research on the role of experience with nature in human development and well-being with analysis of the potential for urban design and land use to disconnect us from nature or to connect us to nature.  Professor Kellert makes the case that low-impact, organic, and vernacular environmental design promotes biophilic values and the ethics of sustainability.  The book’s abstract appears below: 

 

Sustainable design has made great strides in recent years; unfortunately, it still falls short of fully integrating nature into our built environment. Through a groundbreaking new paradigm of "restorative environmental design," award-winning author Stephen R. Kellert proposes a new architectural model of sustainability.  In Building For Life, Kellert examines the fundamental interconnectedness of people and nature, and how the loss of this connection results in a diminished quality of life.  This thoughtful new work illustrates how architects and designers can use simple methods to address our innate needs for contact with nature. Through the use of natural lighting, ventilation, and materials, as well as more unexpected methodologies-the use of metaphor, perspective, enticement, and symbol-architects can greatly enhance our daily lives. These design techniques foster intellectual development, relaxation, and physical and emotional well-being. In the works of architects like Frank Lloyd Wright, Eero Saarinen, Cesar Pelli, Norman Foster, and Michael Hopkins, Kellert sees the success of these strategies and presents models for moving forward. Ultimately, Kellert views our fractured relationship with nature as a design problem rather than an unavoidable aspect of modern life, and he proposes many practical and creative solutions for cultivating a more rewarding experience of nature in our built environment.

Digging Deeper into Development & Exclusion: Freedom and the Common Good in Property Rights

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Professor Eric Freyfogle, of the University of Illinois College of Law, is a prolific and thoughtful writer on the legal, socio-cultural, ethical, and ecological dimensions of private property.  How we define rights or freedoms to develop and exclude shapes our land use and environmental practices.  As Professor Freyfogle’s recent work demonstrates, we often misunderstand the nature of private ownership of land and therefore need to dig deeper to the foundations of property as a social institution.

 

Below are abstracts of and links to three articles by Professor Freyfogle that question assumptions about the right to develop and exclude.

 

1) Property's Functions and the Right to Develop, http://ssrn.com/abstract=1075706: 

 

At stake in most contemporary land-use disputes, particularly those involving regulatory takings, is the legal right of land owners to develop or otherwise alter their lands in significant ways. Landowners claim that they possess or should possess this power, while lawmakers conclude that a curtailment of rights would serve the public interest. For various reasons we've had troubles seeing this conflict clearly. What development rights should landowners possess, and what powers should government have to curtail or redefine them? To address these questions we need to see that private property is basically a tool that society uses to promote the common welfare; it is a social institution in which private owners call upon government (including police, courts, and even prisons) to curtail the activities of nonowners. To decide what development options owners ought to possess, given this moral complexity, we need to consider how a sound system of private property can in practice promote the common good. This essay, drawn from a new book on private property, probes the three basic functions of private land ownership with particular regard for development rights. It also probes how increases in the development value of land are due not to labor expended by owners but to the activities of surrounding landowners as a community. This background sets the stage for answering the central question of development rights. A key conclusion is that, while landowners need and deserve substantial protection from interference with on-going activities, there is much less need to protect their hopes of initiating new land uses in the future. What landowners need most is not some protection against future laws limiting development but instead an assurance that such laws will apply widely to all similarly situated landowners.

 

2) Private Property: Correcting the Half Truths, http://ssrn.com/abstract=1075702: 

Today's discussions about private land ownership and regulatory takings build upon a number of critical assumptions about how private property arises, how it relates to liberty, in what sense it is an individual right, what full ownership entails, and how property rights might legitimately change over time. This essay-excerpted from chapter 1 of a new book, On Private Property: Finding Common Ground on the Ownership of Land-steps back from contemporary debates to probe these fundamental assumptions. The assumptions, it claims, tend to be seriously flawed; they are no more than half-right, and need important revision to provide a solid foundation for evaluating where we stand and charting a course ahead. At root, private property is a social institution, created by law and lawmakers and appropriately revised, generation by generation. Private property does not exist primarily to protect individual liberty; indeed, it curtails liberty as much as it protects it. It makes little sense, also, to claim: that property begins when a person takes first possession of a thing; that private property can somehow be crafted as absolute; and that ownership necessarily entails expansive rights to develop. The situation is more complex, and property rights more pliable, tentative, and morally complex. Scholarly writing on private property would likely improve if commentators turned away from Supreme Court rulings on takings and focused instead on the fundamental elements of private property as an essential tool that society uses and continually reshapes to foster shared goals.

 

3) The Enclosure of America, http://ssrn.com/abstract=1024846:

 

Legal memory in the United States has largely forgotten that most of America's landscape was open to public use well into the nineteenth century. Up until the Civil War and even after, landowners in many regions could exclude the public only from lands that they took the time and expense either to fence or cultivate. In the eyes of many, the public held affirmative use rights in these open lands; the landowner's desire to exclude was irrelevant. This paper explores the range of public uses of lands in early America. It considers how and why enclosure occurred and why historians and legal scholars have largely overlooked this chapter in American history. The answers have to do with shifting ideas about the “right to property,” with the diminishing force of natural law, with narrowing ideas of liberty, and with ongoing economic and social change, particularly the coming of industrialization and its growing demand for wage labor. On top of these explanations was a general failure of defenders of the open countryside to find legal ways to talk about and structure the public's use rights. Many states were willing to set aside the common law of trespass, and did so for generations. Yet, defenders of the open countryside never produced an alternative legal vocabulary to protect these public use rights, except in specific, narrow circumstances; they never found a way to incorporate these public use rights into enduring law. Influential judges and treatise writers, largely urban and Eastern, viewed public rural-land rights with contempt. Their interpretation of the situation gained ascendancy by the late nineteenth century, and it has prevailed ever since.

Is Land Use Like Your Family?

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We are captivated by examples of dysfunctions and our observations of imperfections in social systems.  We do this with families (just take a look at television programs that highlight family dysfunctions).  And we do it with land use regulation.  However, just as the family remains a functional, adaptive, dynamic, and resilient institution in society, so does the land use regulatory system.

 

“The Structure of the Land Use Regulatory System in the United States,” which I recently published in the Journal of Land Use and Environmental Law, studies land use planning, regulation, and decision making from a systematic perspective, noting the functionality, adaptability, dynamism, and resilience of this system in mediating between people and their environments.  The article can be downloaded in PDF for free from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020305.  Below is the abstract:

 

The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the “thinness” of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the “patchiness” of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services – the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.

Faith and Land

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Our legal and policy analyses of land use and environmental issues often overlook the role of religious belief.  Faith and spiritual values shape land use behaviors, policy choices, and social ethics.  A systematic study of the relationships between religious faith and land use and environmental policies can not only inform our understanding of current practices but also aid in assessing the potential for more environmentally responsible land use decisions.  My own commitment to environmental conservation and social justice flows out of my Christian faith, not a particular political ideology or policy pragmatism, even though public policy is necessarily secular, pragmatic, and political.  If we avoid or dismiss assertions of religious values in land use and environmental policy, our empirical analysis is inadequate and our normative judgments are biased.

 

Two relatively recent articles do an excellent job of analyzing the relationships between religious values and the content of our environmental laws.

 

In "The Spiritual Values of Wilderness," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=794184, Notre Dame law professor John Copeland Nagle addresses the spiritual values of the Wilderness Act of 1964, as the following abstract describes:

The Wilderness Act of 1964 is the principal legal mechanism for preserving wilderness in the United States. The law now protects over 100 million acres of federal land, half of which is in Alaska. Yet the contested meaning of the term wilderness continues to affect the management of those wilderness areas, and the designation of additional lands as wilderness areas. Much current thinking about wilderness emphasizes the ecological and recreational interests that Congress cited when it enacted the law. These justifications for wilderness preservation are important, but they are incomplete. They are best supplemented by a better understanding of the spiritual values of wilderness. Religious conceptions have long informed American attitudes toward wilderness, beginning with the hostility that early settlers gleaned from Old Testament images of wilderness lands, and later appearing throughout the writings of John Muir. More recently, the witnesses testifying on behalf of the proposed Wilderness Act during the 1950's and 1960's repeatedly sounded spiritual themes, including biblical examples of the values of wilderness. The decades since the enactment of the law have produced a substantial theological literature that explores the meaning of wilderness. This article integrates the writing about the spiritual values of wilderness into the discussions of the management of wilderness areas, relying upon the examples of Alaskan wilderness lands to consider how to identify new wilderness areas and how to manage existing areas.

 

In "World Religions and the Clean Water Act," http://papers.ssrn.com/sol3/papers.cfm?abstract_id=914571,  Pepperdine land use professor Shelley Saxer and law-and-theology scholar Daryl Fisher-Ogden, explore the common spiritual and ethical themes of major world religions concerning water quality:

Religion could help save the ecology of our planet. Religious ideals are at the core of many people's value system and speaking to this core may help realize the radical ethical changes required to save our planet. Like other political movements throughout the history of the United States, the environmental movement is often inspired by religious ideals. However, sometimes religious values are suppressed in public discourse about environmental law and policy because Americans are uncomfortable with combining religious values and government policy. This article contends that religious values from diverse world religions can inform policy choices in developing regulatory schemes that protect air, water, and land resources. The incorporation of stories from our global religious heritage may enable us to establish a relationship with nature that can provide for human needs while protecting our environmental resources. With the moral power of religion behind an enforcement plan, it has a better chance of success.

First, we examine the major world religions and indigenous spiritualism in an effort to discover how religious views of the human relationship with nature generally influence environmental laws, and more specifically water law. The views towards water held by indigenous people, Buddhists, Jews, and Christians are similar in many respects in that theirs is a religious ethic to preserve nature as it is found in this world, even while their adherents must, by necessity, utilize these resources. Muslims also seek preservation of water quality with a sense of stewardship for future generations while Hindus view water as a life giving force in the world. Regardless of the religious background, there is a well-spring of popular spiritual support for greater preservation and care about water and its quality. Second, we examine the current legal views about the human relationship to the environment, including the definition of property and the constitutional basis for environmental rights, and also consider how world religions view the human relationship to the environment. Third, we practically incorporate religious values into a regulatory structure and examine the impact of religious values on clean water laws by using religious stories, images, and values to provide powerful ways to capture the attention of legislators, enforcement personnel, and the public at large.

While there may be several ethical systems within a community, often the religious and secular environmental approaches come to the same value-decision: achieving the maximum quality of water possible while still providing for human need. The article concludes by advocating that values from world religions be used as a rich, diverse, and proven framework that can enable the relationship between humans and nature to thrive physically and spiritually, rather than wither by operating at cross-purposes. If environmental laws could be designed and implemented with a greater acceptance of religious values in the public dialogue, they might be less susceptible to constant challenge. Secular environmentalists should recognize that many environmental ethical theories have been influenced by religious values and that people with religious views are their allies, not their opponents. Although secular persons may not fully understand religious motivation, by facilitating the entry of religious ideas and vernacular into the environmental dialogue they can build a coalition to achieve their desired end: environmental protection. Religious ideals can supplement secular views to help develop a more robust environmental ethic for the 21st century. Protecting our environment, the very thing which sustains us physically, is too important to be limited to a single spiritual or non-spiritual viewpoint.

Sustainable Land Use and Progressive Realism

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Are we making any progress towards land use that is more ecologically sustainable?  Is future progress possible?  These questions don’t have easy answers.  After all, terms like “sustainable development,” “sustainable communities,” and “smart growth” are broad enough to mean a lot of different things to different people and groups.  Their breadth can mask policies that might not be all that environmentally responsible or that might have unintended consequences.  They can result in merely symbolic policies without much substantive effect.  Efforts to achieve effective reforms encounter strong and persistent political, economic, socio-cultural, and psychological barriers.

 

Nonetheless, realism about the prospects of environmentally responsible land use policies cuts both ways.  There are areas of common ground between protecting natural environments and promoting good human quality of life.  There are achievable reforms that are being adopted or considered.  The land use planning and regulatory system has the capacity to promote and demand land use practices that are more environmentally sustainable than current practices.

 

Two different articles make realistic and balanced assessments of progress-to-date on sustainable land use in the United States, focusing primarily on progress among states and localities.  These articles also offer a variety of useful ideas about potential future progress and reform that will carry efforts towards sustainability forward.

 

The first article, written by land use scholar Patty Salkin, is “Squaring the Circle on Sprawl: What More Can We Do?: Progress Towards Sustainable Land Use in the States,” and was published in the Widener Law Journal in 2007.  It can be downloaded in PDF for free from the Social Science Research Network (SSRN) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1025873.  Professor Salkin’s abstract states:

With almost ten years of nationwide dialogue and experimentation with the legal implementation of smart growth concepts at the state and local levels, this paper pauses to consider whether and to what extent success has been realized. The one certainty in this dynamic intersection of land development and conservation is that there is no one best model adaptable to all fifty states. Rather, to accommodate national diversity in local government structure, cultural relationships of people to the land, and differences in geography and a sense of place, the best lesson learned is that advocates and lawmakers alike must shape and adopt politically palatable policies, programs, and regulations to best fit their unique jurisdictional sustainability needs. However, with the realization that a lot of innovation is taking place at the state level in furtherance of smart growth initiatives also comes the reality that if states fail to continue to promote and refine these programs, the United States will lose the fight for sustainability. This paper examines the recent efforts by states to provide localities with the tools necessary to curb sprawl and to promote sustainable communities.  

 

The second article, written by sustainability expert John Dernbach and neighborhood planner Scott Bernstein, is “Pursuing Sustainable Communities: Looking Back, Looking Forward,” and was published in the Urban Lawyer in 2003.  It can be downloaded in PDF for free from SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=983502.  The abstract for this article states:

This article explains what sustainable development would mean for cities and other communities in the United States, describes U.S. efforts toward sustainable communities between 1992 and 2002, and recommends actions for the next decade. While the connections between environment and development are often abstractions at the national and international levels, they are perhaps nowhere more clear than the places where people live, work, and play. Municipalities should work with each other and with other levels of government to integrate their decision making processes for environment and development, using a strategic planning process and setting goals. Between 1992 and 2002, a small number of local governments addressed sustainable development in some comprehensive way. Sustainable community efforts were most visible on specific issues such as brownfield redevelopment; public access to information, participation, and justice; land use; transportation; housing; public health services; and education. In the coming decade, local governments should adopt and implement sustainable development strategies in coordination with nearby municipalities, and that states and the national government support such efforts. Sustainable development can and should be the organizing principle for improving quality of life and opportunity in our communities. The article also includes recommendations on specific issues.

New Blog on Land and the Environment: Mapping the Landscape

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A new blog launches to provide readers with resources on land use and the environment.  "Mapping the Landscape" will feature abstracts of and links to recent publications that address the intersection of land use and environmental issues.  Each blog entry will begin with a short explanatory statement about the importance or usefulness of the featured resource, followed by an abstract and a link to the publication.  The blog will appear weekly (or more frequently at times) and will initially feature articles freely downloadable from the Social Science Research Network.  Many of the posting will relate to themes of environmental responsibility in land use.  Watch for the posting on the first resource in the next few days.

Tony Arnold

Boehl Chair in Property and Land Use

Professor of Law & Affiliated Professor of Urban Planning

Chair of the Center for Land Use and Environmental Responsibility

University of Louisville