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Volume 33, Issue 5 — May 2003


We Do Not Hold the Earth in Trust

by Jeffrey M. Gaba

One of the central concerns of environmental ethics is to clarify the moral relationship between present and future generations. How should we think about our ethical responsibilities to a continuing stream of unknown humanity? Virtually all commentators recognize that the future is entitled to moral consideration in evaluating our present actions.1 We owe the future something; the questions are what and why. On these questions there is no consensus.

The debate is subtle, far-reaching, and even contentious.2 Should our relationship be one that is analyzed in terms of rights and duties, and if so what rights and what duties? Should the interests of the future be included in a utilitarian assessment of present actions, and if so how can we evaluate the impact of present actions on the welfare of future humans? Should a goal of present virtue, grounded in a tradition of "virtue ethics," shape the actions of the present generation, and if so, are there limits on present actions if constrained only by concerns for virtue? The debate is significant; it has the potential to alter the actions we now take that affect future humanity.

Of Nominal Value: The Impact of Tahoe-Sierra on Lucas and the Fundamental Right to Use Private Property

by J. David Breemer

In the 1992 case of Lucas v. South Carolina Coastal Council,1 the U.S. Supreme Court held that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is to leave his property economically idle, he has suffered a taking."2 A decade later, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency,3 the Court refused to apply the Lucas standard to strike down as a taking a temporary building moratorium that prevented all economically beneficial uses of property during its effective period.4 The Tahoe-Sierra Court ultimately concluded that the balancing test of Penn Central Transportation Co. v. City of New York,5 rather than a per se rule similar to that in Lucas, determines whether compensation is required for land use regulations designed to temporarily freeze all property development.6

While the Tahoe-Sierra Court declared that its decision was meant to be narrow, addressing only the issue of the standard governing a temporary building restriction, the opinion included troublesome dicta regarding the meaning of Lucas and, particularly, that decision's holding that a taking occurs where there is a complete deprivation of economically beneficial use of property. Most significantly, the dicta suggests that the "all economically beneficial use" per se takings rule only applies when there is a complete elimination of property value. A few post-Tahoe-Sierra courts and commentators have adopted this dicta when considering Lucas, and in so doing, have implicitly concluded that the presence of some value allows the government to escape a taking under Lucas.

This Article contends that it is a mistake to treat Tahoe-Sierra's sporadic emphasis on property value as indicative of the proper or controlling method for construing the "all economically beneficial use" rule. The Article begins with a review of the origins of Lucas' "all economically beneficial use" rule and briefly summarizes the Tahoe-Sierra Court's treatment of Lucas. The next section suggests several reasons why Tahoe-Sierra failed to significantly alter the meaning of the "all economically beneficial use" rule or to undermine it as an independent takings standard. This part also explores selected pre-Lucas cases to show that courts have always been concerned with the ability of the property owner to make some physical use of property. Finally, this section argues that such a use-based focus makes sense in light of traditional understandings of property rights.

The Article then provides an overview of the future direction of Lucas and the "all economically beneficial" use rule. It reveals the likely (use-based) contours of the rule by focusing on cases where government regulation requires a property owner to leave land in a natural state. The Article concludes that Lucas' categorical "beneficial use" rule continues to exist as such and is not likely to be undermined by a resurgent "investment-backed expectations" doctrine.

Like Minds? Two Perspectives on International Environmental Joint Efforts

by Ruth Greenspan Bell and Sandor Fulop

The developed world has spent some $ 10 billion in assistance over the past 25 years to improve environmental policies and management in developing countries and countries in transition. The apparent assumption has been that it is sufficient to bring environmental professionals together and let them work on issues of mutual concern. Thus, western economists work with local economists to develop market-incentive instruments; engineers install technology; lawyers in concert with their counterparts draft laws or develop enforcement policies; and so forth. Ostensibly, these professionals share joint environmental goals and possess a sufficiently common vocabulary and set of assumptions.

But do they? What can be said about their actual communication? Were they all participating in the same project for the same reasons? Did they understand its goals in the same ways? How did they communicate, or were they essentially ships passing in the night?

Where the Water Hits the Road: Recent Developments in Clean Water Act Litigation

by James R. May

The last 18 months have produced particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act (CWA or Act) jurisdiction, permits, standards, citizen suits, and other enforcement. On the jurisdictional front, we learned that "deep ripping" constitutes an "addition" of a pollutant by a "point source." We also learned that 25-year-old cases from the U.S. Court of Appeals for the D.C. Circuit hold less sway insofar as "addition" includes polluted water diverted from one water to another, and "pollutant" includes parts, foods, and medicines from fish farms and other operations that are discharged, unless exempted. We learned more about when combined animal feeding operations (CAFOs) are point sources. Post Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), we learned "navigable water" still means more than strictly navigable for commerce, and includes wetlands adjacent or hydraulically connected to non-navigable tributaries that flow into actual navigable waters.

Permit issues were less eventful. Courts still defer broadly to the U.S. Environmental Protection Agency (EPA) establishment of technology-based standards. Pollutants contemplated but not regulated by agencies can be discharged without a permit, and water quality standards not addressed by a permit can be violated under the Act's "permit shield" provision. States can waive the requirement that renewal applications need be submitted 180 days before permit expiration. Under limited circumstances, EPA must withdraw delegated national pollutant discharge elimination system (NPDES) permitting authority.

Will Nutrient Credit Trading Ever Work? An Assessment of Supply and Demand Problems and Institutional Obstacles

by Dennis M. King and Peter J. Kuch

Despite the compelling economic logic of nutrient credit trading, widespread support for it, years of research into how it should work, and about 37 on-the-ground prototype trading programs in the United States, very few nutrient credit trades have actually taken place. This Article addresses questions about whether the obstacles preventing nutrient credit trading seem to be supply-related, demand-related, or the result of institutional problems that inhibit buyers and sellers from consummating trades. We conclude that institutional obstacles are significant, but of secondary importance and capable of being overcome. The problems related to inadequate supply and demand are more important, more difficult to overcome, and largely outside the control of regional groups attempting to develop and manage nutrient trading systems at the watershed level.

Changes in state and federal water and agricultural policies that would be required to stimulate the supply and demand for regional nutrient credits are unpopular, often considered inequitable, and not likely to take place any time soon. Therefore, we recommend that market-style nutrient credit trading be promoted only in areas where favorable supply and demand conditions can be demonstrated. Since such areas are not widespread, we also recommend that enthusiasm about the concept of market-style nutrient trading not be allowed to divert attention away from other incentive-based solutions to "overnutrification" problems.