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An Enduring American Heritage: A Substantive Due Process Right to Public Wild Lands

January 2021

Citation: 51 ELR 10026

Issue: 1

Author: Ariel Strauss

I magine, on account of an economic downturn associated with massive defense spending, or a change in regulatory philosophy, or a pandemic, the U.S. Congress enacted legislation duly signed by the president to sell virtually all federal wild lands to the highest bidder without restriction. Would such action be constitutional? The principles behind this question are now of monumental importance. In the absence of significant changes in federal land management practices and a coordinated program to reverse the buildup of greenhouse gases in the atmosphere, several studies predict that significant portions of the nation’s wild lands will be irreparably and drastically altered from their historic natural state. This Comment explores the connection between wild lands and our scheme of ordered liberty, discusses the deep and evolving history and tradition of federal wild land preservation, explains the justification for recognizing an affirmative right, and offers preliminary observations on standards for evaluating the right.

Ariel Strauss is Of Counsel at Greenfire Law, P.C., in Berkeley, California.

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