This article will examine potential conflicts between sustainable development and property rights in light of: (a) the recent rise of the anti-Agenda 21 campaign that has rapidly gained traction in the United States, (b) a new book on the subject, and (c) a recent US Supreme Court decision of June 23, 2013.
As we have seen in several recent articles on this website, there is a new, surprisingly successful attack on sustainability in the United States that claims that local and regional planning that includes environmental, energy, transportation, traffic minimization, and land use provisions is the manifestation of a surreptitious United Nations plot to undermine United States sovereignty to impose a Marxist/socialist new world order. See the last in a three part series, Responding To the Anti-Agenda 21 Disinformation Campaign: A Rigorous Look At The Campaign’s Untruthful Claims.
Although the claims that have been made by activists in the Anti-Agenda 21 campaign are so looney, absurd, and woefully ignorant of international law that some who have been aware of this recent development have chosen to ignore it on the basis that it could never achieve traction in a modern democracy in the 21rst Century, this right wing attack on sustainability has emerged all across the United States. As we have explained in considerable detail in past articles in this series, the anti-Agenda 21 campaign has been remarkably successful in the last two years in preventing local communities from implementing plans necessary to achieve their democratically derived community aspirations to implement local sustainability programs.
The anti-Agenda 21 Campaign has been successful, at least in part, by claiming that sustainable development and Agenda 21 undermines property rights. They make this claim despite the fact that, as we have shown in previous papers in this series, Section 8.18 of Agenda 21 provides that governments and legislators should establish judicial and administrative procedures for legal redress and remedy of actions affecting environment and development that may affect rights. Agenda 21, section 10.5 also expressly says that property rights should be taken into account in land use decisions. And so, not only is there no support for the claim that Agenda 21 encourages the reduction of property rights, as we have seen, Agenda 21 says the exact opposite.
It would appear that activists in the anti-Agenda 21 campaign believe that property ownership conveys the right to use property without limit and with no or few responsibilities to protect the environment or ecological systems.
Although Agenda 21 does not undermine property rights are there potential conflicts between sustainability and property rights? A new book has been published that looks at potential conflicts between property rights and sustainability. The book is Property Rights and Sustainability: the Evolution of Property Rights to Meet Ecological Challenges which is edited by David Grinlinton and Prue Taylor. This book seeks to determine how to reconcile the exercise of freedom to use one’s property as one pleases with the responsibility to protect ecological resources. The book contains 15 chapters that examine potential conflicts between property rights and the responsibilities of property owners not to harm the environment. The book further identifies ways of reforming property law to establish clearer obligations to protect the environment. Although all authors in this volume acknowledge the importance of retaining property rights they also examine the need of property law to more clearly establish responsibilities that owners have to protect the environment.
All of the chapters in this book acknowledge social benefits from secure property rights, however most of the chapters in the book assume that the property law must also be clearer about the obligations of property owners to avoid harming the natural resource base on which life depends.
In the opening chapter, Grinlinton and Taylor argue that property rights law prioritizes economic interests over ecological obligations.
In chapter two, Klause Bosselmann argues that current property laws inappropriately give priority to individual entitlements over collective responsibilities. Bosselmann further claims that the property law’s unfinished business is to reconcile private rights with public duties.
Eric Freyfogle argues that is not right to pay land owners to forgo actions that are harmful to others.
J. Ronald Engel argues that property law needs to reflect an understanding of moral obligations property owners have that are understood through reflection on covenants that ground the social contract.
Peter Horsley criticizes current property law by claiming that it is based upon assumptions that humans own nature rather than an understanding of the relationship between humans and nature, namely that humans are part of nature. Property law according to Horsely fails to prevent many small cumulative impacts on nature, ignores the carrying capacity of ecosystems, and fails to protect ecosystem integrity. Thus, according to Horsely the current focus on “rights” is causing growing harm to the natural world on which we depend.
Samuel Alexander claims that the overriding objective of property laws is to facilitate economic growth as efficiently as possible.
Nicole Graham claims that the meaning of property rights has always evolved over time and that recent steps to solve environmental problems by use of economic markets has been built on six myths about markets. These myths are: (1) rights and profits are not accompanied by responsibilities and costs; (2) the fragmentation of property into multiple and concurrent interests is a good thing; (3) market players make rational choices with perfect information; (4) environmental products can be accurately valued; (5) the demand for environmental products is responsive to price signals; and (6) environmental markets can solve environmental problems.
Craig Anthony (Toni) Arnold agues that the dominant idea about property is that it is a “bundle of rights” that leads to property owners becoming abstracted from ecological systems. He thus argues that property should be understood as a web of interests rather than as a “bundle of rights.”
Successive chapters by Veronica Strong, Nin Thomas, and Lee Golden examine differing cultural approaches to property.
Concluding chapters by David Grinlinton, Ann Brower and John Page, Elmarie van der Schyff, and Amokura Kawharu look at changing conceptions of property and the challenge of accommodating principles of sustainability to the ownership of and use of natural resources.
This new book claims that there may be a need to modify property rights to protect ecological systems although none of the chapters call for private interests in property to be completely replaced by public interests.
This book is an excellent summary of issues that arise when property rights conflict with the protection of the environment.
Yet there are open questions about how frequently environmental protection objectives contained in land us plans, regulations that constrain land uses to achieve environmental protection goals, or permit conditions actually conflict with property rights.
As we have explained in considerable detail in prior entries on this subject, Agenda 21 does not call for changes in property rights. In fact, Agenda 21 urges that property rights be protected. We now, however, look at whether many of the issues that have arisen in some of the local and regional controversies violate the property rights protection under the US Constitution.
To determine the magnitude of any conflict between sustainability and property rights, it is first necessary to look at how courts have articulated when government regulation violates property rights. A comprehensive article on whether there is a conflict between sustainability policies has been published recently. This article is: Does Sustainability Require a New Theory of Property Rights? (Circo. 2009) In this article, Circo concludes that under US constitutional law:
When the contested government action merely regulates land use without physically interfering with possession, the adversely affected landowner will have no right to compensation (a takings claim) absent a showing that the restriction denies the owner “all economically viable use of the land” or that it imposes burdens that bear no relationship to the regulation’s public benefits. In other words, unless the regulation virtually prohibits any valuable use of the land, courts will use a deferential balancing test to determine how far government regulation may go.
Circo’s summary of takings law goes on to conclude:
The leading land use cases reflect the traditional theory that government may impose significant, even highly intrusive, restrictions on property rights for police power purposes. The usual test is that a police power imposition on property rights is valid unless it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Notice the two elements involved: the limitation on property rights must be for a valid police power function (health, safety, morals, or general welfare) and the limitation imposed must bear at least some relationship to that police power purpose (must not be arbitrary or unreasonable).
Thus it is clear that it is not a violation of property rights for government to impose reasonable restrictions on land use necessary to protect the environment unless the restrictions completely eliminate the use of the property by the owner.
Yet the anti-Agenda 21 campaign has asserted that land-use restrictions such as those that require land owners to install stream buffers when necessary to protect water quality, zoning ordinances that attempt to assure that development does not exceed the carrying capacity limits of ecological systems such as the maximum sustainable yield of groundwater, or regulations that require the protection of wetlands are an infringement of property rights. But as Circo’s analysis makes clear, property rights are not unlimited, and the US courts have almost always upheld reasonable regulation of land needed to protect the environment.
However, if government restricts any reasonable use of land to achieve sustainability goals, this would likely be seen by US courts as a violation of property rights. Yet courts do not see property rights as giving land owners the right to use the land in such a way that it adversely affects the environment.
Does this mean that any proposed government restriction on land use in the name of sustainable development would not conflict with property rights as currently understood under US constitutional law? Here Circo sees at least one kind of government regulation urged by the idea of sustainability that could create conflicts between property rights and sustainability. That is in cases where governments limit the use of natural resources for the sole benefit of future generations. In such a case, Circo sees a potential conflict between sustainability and land use. It is in such cases where the issues of concern in the book discussed above arise. Yet, most environmental restrictions on the use of land that don’t prevent the land owner from using his or her land are not prohibited by property rights in the United States. And so, the anti-Agenda 21 campaign’s claims that sustainability undermines property rights is also not true for two reasons. As we have seen Agenda 21 calls for the protection of property rights. Also most of the land-use provisions under attack by the anti-Agenda 21 campaign do not violate property rights under. The general rule that environmental restrictions on land use do not entail an unlawful taking of property under the US constitutional law was set out in the Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). This case held that insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy and limitations on land use do not create and unconstitutional taking.
However a recent case by the US Supreme Court, identifies a potential infringement on property rights when government imposes unreasonable conditions on land-use permits or approvals. In Koontz v. St. Johns River Water Management District, No. 11-1447, 570 U.S. __ (2013), the court concluded that there could be an unconstitutional taking of property if governments condition the issuance of permit to mitigate adverse environmental protection goals when the condition lacks an essential nexus and rough proportionality to those impacts. Otherwise there is no taking.
For the limited number of issues raised by sustainability that actually conflict with property rights, the book Property Rights and Sustainability: the Evolution of Property Rights to meet Ecological Challenges is good introduction to the issues that should be considered on matters where there is a conflict between protecting the environment and property rights.
Donald A. Brown
Scholar In Residence, Sustainbility Ethics and Law
Widener University School of Law