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Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment

May 1994

Citation: 24 ELR 10231

Issue: 5

Author: James M. McElfish

Editors' Summary: Environmental regulation has come under increasing attack from those who argue that governmental limitations on property use violate constitutional restrictions on regulatory takings of property. The author addresses this controversy by focusing on the background limitations on owners' rights that are inherent in property law itself, as opposed to the external controls that government may impose under the doctrines of police power and nuisance. He argues that regulation in support of evolving expectations developed along with—and was upheld to balance—courts' deviation from historically more rigid limits on property use.

The author begins by tracing the legal philosophy of property from John Locke, through, among others, Thomas Jefferson, Benjamin Franklin, and Justice Holmes. He concludes that under the modern conception of property, owners' rights are not absolute but are limited by the rights of others. The author next turns to the historical development of property law, beginning with its 12th-century, feudal origins. He reviews property's evolution and modification by statutes and common-law decisions.

In the 18th century, the law recognized a form of "absolute" dominion over property whereby each owner had a right to prevent neighbors from using land in a manner that would interfere with that owner's quiet enjoyment. This inherently conservative view of property greatly limited intensive and innovative uses of land and, by the early 19th century, conflicted with the needs of a developing U.S. economy. Courts overturned and modified common-law doctrines to keep pace with evolving expectations about reasonable property use. As they stripped from property law many of the restrictive protections afforded by traditional quiet enjoyment doctrine, courts recognized other, more flexible means for protecting quiet enjoyment and other rights of property owners and the public. These regulatory protections are thus rooted in the inherent limitations on owners' dominion over land.

The author next reviews the elements of the property right. He examines the various attributes in the "bundle of sticks" that constitutes property to show that the law's protection of each property interest is tempered by the nature and historical treatment of that interest. Illustrating limitations inherent in the nature of property itself, the author provides examples of exceptions to owners' rights to exclude others, occupy and use property for enterprise, and convey and devise property.

In this Article's final section, the author explores two critical points to demonstrate that environmental regulation in support of evolving expectations is based on—rather than inconsistent with—the essential character of property law. The first is that such regulation often serves to promote fair allocation of the burdens and benefits associated with property ownership. Environmental laws limit property owners' ability to impose—in the form of pollution, impairment, or destruction of shared resources—the costs of their activities on others. Such laws also force property owners to share some of the costs incurred by society to preserve and enhance property's overall usefulness. The second of the author's critical points is that just compensation doctrine does not protect every existing, potential, or speculative use to which property might be put. The author argues that takings controversies are most likely to arise when proposals for more intensive land uses occur in rural and less developed areas. Although governmental regulation in response to these conflicts may interfere with owners' investment-backed expectations, the regulations generally represent society's exercise of a preexisting right, rather than the destruction of property. The author briefly discusses
Lucas v. South Carolina Coastal Council in this context as the exception that proves the rule.

Environmental regulation in support of evolving expectations, the author argues, has been essential to the development of property law and is now a critical part of the relationship between society and the individual that gives property its meaning. The author concludes that an understanding of the limitations inherent in property itself reveals that most regulatory takings claims are attempts to redefine, not preserve, the rights associated with private property.

Mr. McElfish is a Senior Attorney at the Environmental Law Institute. He is a graduate of Dickinson College (B.A. 1976), and received his J.D. in 1979 from Yale Law School. This work was supported, in part, by a generous grant from the W. Alton Jones Foundation.

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