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Owning Up to the Environment

Citation: ELR 10994

Author: Daniel A. Farber

It may seem paradoxical to suggest that property law can shape constitutional doctrine, let alone that it can do so in a pro-environmental direction. As every law student learns, constitutional law trumps "ordinary" law such as property law. Yet, constitutional doctrines have to operate on facts--and those facts may be legal ("Has the government invaded the plaintiff's property rights?") as well as physical. Changing the legal facts can change the constitutional result. If we cannot directly persuade the U.S. Supreme Court to make the constitutional machinery more "environment friendly," we might be able to achieve similar results by changing the raw materials that are fed into the machine. Or, to use another metaphor, we may be able to change the legal landscape in which constitutional doctrine operates.

"Property rights advocates" typically oppose environmental regulation. Yet, property law actually has great potential to support environmental protection. This Article will argue that, rather than being a constitutional bulwark against environmental regulation, certain kinds of property rights can actually ease constitutional barriers created by current Supreme Court doctrine. These environmental property rights (EPRs) are either rights to prevent environmental degradation (such as conservation easements) or limited rights to impair the environment (such as tradable pollution permits). Among other possible benefits, these property rights may help nudge constitutional law in a more environmentally friendly direction.

Daniel A. Farber is the Sho Sato Professor of Law and Chair, Energy and Resources Group, University of California at Berkeley.

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