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Property Rights and Responsibilities: Nuisance, Land-Use Regulation, and Sustainable Use

September 1994

Citation: ELR 10520

Author: Philip Warburg and James M. McElfish Jr.

Editors' Summary: This Article addresses the effect of the U.S. Constitution's Takings Clause on the government's authority to protect environmental resources. An earlier Article, published in the May 1994 of ELR, analyzed bases for government regulation provided by limitations inherent in the property right itself. In contrast, this Article focuses on an emerging doctrine of sustainable use, rooted in background principles of nuisance law and the government's complementary police power.

This Article first examines how the law of nuisance has restrained many potentially damaging uses of private property. It highlights the impact of nuisance law's doctrine of harm prevention on modern environmental law and the law's ability to adapt to changing circumstances. Next, this Article discusses recent situations in which legislatures and courts have helped crystalize the doctrine of sustainable use by applying "natural-use" principles to ecologically sensitive areas, and by enacting—and upholding—comprehensive land-use planning legislation. In this context, this Article examines the U.S. Supreme Court's recent opinion in
Dolan v. City of Tigard.

Finally, this Article discusses the roots and implications of two central principles of sustainable-use doctrine: (1) prevention of adverse cumulative environmental impacts, and (2) protection of the interests of future generations. This Article concludes by emphasizing the sustainable-use doctrine's roots in background principles of common law, and its power to provide a basis for effective environmental protection in response to changing circumstances.

Philip Warburg and James M. McElfish Jr. are Senior Attorneys at the Environmental Law Institute in Washington, D.C. The authors would like to thank Kaitilin Gaffney and Beth Goldstein for conducting valuable background research, and Tobie Bernstein, David B. Hunter, Erik Meyers, Elissa Parker, John A. Pendergrass III, and Dan Selmi for their advice. The conclusions are strictly those of Mr. Warburg and Mr. McElfish. This work was supported, in part, by a generous grant from the W. Alton Jones Foundation.

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