24 ELR 10520 -- Property Rights and Responsibilities: Nuisance, Land-Use Regulation, and Sustainable Use

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

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 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.

[24 ELR 10520]

New occasions teach new duties: Time makes ancient good uncouth; They must upward still, and onward, who would stay abreast of Truth. -- James Russell Lowell (1844)

Never in our history has there been a more pressing need to temper the exercise of private property "rights" with vigorous safeguards against unsustainable land uses. Uses and abuses of private property are directly implicated in practically all dimensions of today's ecological losses.¹ Nonetheless, as the need for a more comprehensive response to environmental problems has become urgently apparent, the scope of existing environmental law and regulation has come under increasing attack.² To resolve competing environmental and development claims, our courts and legislative bodies must -- consistent with constitutional safeguards³ -- reconcile modern understandings of environmental [24 ELR 10521] relationships with our traditional system of property law. This Article identifies an emerging doctrine of sustainable use that should inform legal determinations of property rights and responsibilities.⁴ The doctrine is derived from: (1) the law of nuisance, as modified and adapted by U.S. courts and legislatures over the past 200 years, (2) "natural-use" principles applied by courts to ecologically sensitive areas, and (3) emerging trends in comprehensive statewide land-use regulation. To foster sustainable use, the law must respond flexibly to evolving understandings of social and ecological harm. This Article identifies two principles of sustainable use that, in appropriate cases, provide a basis for upholding environmentally protective government action against "property rights" claims. These are: (1) prevention or minimization of adverse cumulative environmental impacts and (2) protection of the interests of future generations.

Nuisance Law

Historical Development

The emerging doctrine of sustainable use is rooted solidly in the background principles of common-law nuisance. At the heart of English and U.S. nuisance law lies the tenet that private conduct and private property rights are qualified by the duty not to inflict harm on others. This doctrine of harm prevention has enabled courts and governments to respond flexibly to changing conditions and understandings, consistent with private property and personal liberty.

In England, by the thirteenth century, individuals responsible for any of a number of offenses causing inconvenience or damage to the public could be criminally prosecuted for committing a public nuisance; they could also be subject to court decrees mandating them to abate the undesired activity.⁵ By the sixteenth century, private plaintiffs in public nuisance cases who alleged special injuries distinct from those affecting the general public could seek damages for those injuries.⁶ Public nuisances were defined in England by statute as well as through common law. After the Great Fire swept London in 1666, for example, Parliament passed an Act declaring it to be a public nuisance to build or rebuild any structure in London or Westminster except in conformity with conditions set forth in that Act.⁷ Royal decrees were another means of forbidding activities deemed noxious to the public well-being.⁸

By the mid-nineteenth century, public nuisance doctrine served as an important, if piecemeal, means of addressing a new generation of health hazards posed by the introduction of flush toilets and waterborne sanitation services in England. Through a succession of nuisance-based court actions, government attorneys sought to enjoin local sanitation authorities from discharging raw sewage into surface waters.⁹ These cases represented a turning point in English nuisance litigation, with injunction-seeking "relator" actions filed against corporate entities replacing criminal prosecution of individuals as the primary basis for government action.¹⁰

Environmental harms also figured prominently in England's common-law doctrine of private nuisance. With respect to water pollution, William Blackstone observed in 1768 that it was a nuisance "to corrupt or poison a water-course, by erecting a dye-house or a lime-pit for the use of trade, in the upper part of the stream."¹¹ Among the forms of air pollution actionable as private nuisance were fumes from a limekiln, if operated in too close proximity to neighboring property.¹² Also actionable was damage to crops and livestock caused by fumes from a lead smelter.¹³ Raising hogs or other livestock, moreover, constituted a nuisance if carried out "so near the house of another, that the stench of them incommodes him and makes the air unwholesome."¹⁴

[24 ELR 10522]

Application to Modern Environmental Problems

State Nuisance Legislation. Statutory nuisance law in the United States dates back to the very early years of the republic. In a law originally enacted in 1797 and still applicable today, the Commonwealth of Massachusetts directs the public health authority in each locality to "examine into all nuisances, sources of filth and causes of sickness … which may, in its opinion, be injurious to the public health" and commands these authorities to "destroy, remove or prevent" these public health hazards, issuing regulations as needed to accomplish these purposes.¹⁵ More recent statutes, in some cases, include within their definitions of nuisance a listing of some very specific hazards. Maryland's nuisance law, for example, points to "an unsanitary outhouse, a foul pigpen, an improperly functioning sewage system, an unkept junkyard, an unkept scrap metal processing facility, an excessive accumulation of trash or garbage, … an inadequately protected water supply, or a rat harborage" as specific examples of nuisances that "may adversely affect the public health."¹⁶

State-level nuisance laws target a number of environmental harms. Maryland's code, for example, includes in its definition of nuisance "[a]ny condition that may endanger health through the spreading of the condition by any means, including by streams, surface drainage, air currents, winged life, domestic animals, or human beings."¹⁷ Hawaii's nuisance statute is cast somewhat more broadly, calling for the investigation and abatement of "all nuisances, foul or noxious odors, gases or vapors, water in which mosquito larvae exist, sources of filth, and all causes of sickness or disease."¹⁸ Similarly, nuisance law in the state of Washington makes it a public nuisance "[t]o throw or deposit any offal or other offensive matter … in any watercourse, stream, lake, pond, spring, well, or common sewer, street, or public highway, or in any manner to corrupt or render unwholesome or impure the water of any such spring, stream, pond, lake, or well, to the injury or prejudice of others."¹⁹ The statute also bars conduct related to trade, employment, or manufacture "which, by occasioning obnoxious exhalation, offensive smells, or otherwise is offensive or dangerous to the health of individuals or of the public."²⁰

Nuisance Principles in Environmental Law. The harm prevention function of nuisance doctrine has profoundly influenced the development of environmental statutes at the national, state, and local levels. Indeed, nuisance theory and case law have been described as "the common law backbone of modern environmental and energy law."²¹ Comprehensive programs established under the Clean Air Act,²² the Federal Water Pollution Control Act,²³ the Comprehensive Environmental Response, Compensation, and Liability Act,²⁴ the Resource Conservation and Recovery Act (RCRA),²⁵ and other national environmental laws cover areas of law -- pollution of air, water, and land -- that were traditionally regulated through nuisance actions. The congressional declaration of findings in the federal Clean Air Act is emblematic of the nuisance-related concerns addressed by modern environmental statutes: "[T]he growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles," the Act declares, "has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and deterioration of property, and hazards to air and ground transportation."²⁶ In RCRA §§ 7002(a)(1)(B) and 7003,²⁷ Congress adopted statutory language intended "to act as a codification of 'common law public nuisance remedies.'"²⁸

The courts, generally, have demonstrated a respect for laws and policies that are responsive to rapid changes in the physical environment and to newly acquired knowledge about that environment. In Zabel v. Tabb,²⁹ decided in 1970, the Fifth Circuit upheld the Secretary of the Army's denial of a permit to fill 11 acres of tidelands for a commercial trailer park, explaining:

[The U.S. Army Corps of Engineers] was entitled, if not required, to consider ecological factors and, being persuaded by them, to deny that which might have been granted routinely five, ten, or fifteen years ago before man's explosive increase made all, including Congress, aware of civilization's potential destruction from breathing its own polluted air and drinking its own infected water and the immeasurable loss from a silent-spring-like disturbance of nature's economy.³⁰

The Zabel court cited the National Environmental Policy Act (NEPA)³¹ in support of the U.S. Army Corps of Engineers' [24 ELR 10523] action.³² NEPA's "Declaration of National Environmental Policy" recognizes "the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances."³³ The Zabel ruling's responsiveness to changing physical conditions, knowledge, and values is central to advancing a judicial doctrine that will foster a more inclusive view of harm prevention and public stewardship of lands and resources as applied to private property uses.³⁴

The prevention of harm through governmental intervention has evolved through two centuries of a dynamic relationship between court-defined doctrine and legislation. This dynamism has proven vital to the development of effective governmental responses to environmental problems associated with the economic and technological transformations that have swept our nation. Today, environmental laws and regulatory programs give contemporary voice to harm prevention concerns traditionally addressed through common-law and statutory nuisance doctrine.

Takings Implications

It is axiomatic that there can be no legitimate property interest in the creation of a public nuisance.³⁵ Over a century ago, the government's authority to impose severe financial burdens on property owners when necessary to prevent harm to public safety and welfare was affirmed by the U.S. Supreme Court in Mugler v. Kansas.³⁶ In that landmark decision, rendered in 1887, the Court validated the Kansas legislature's authority to ban the production and distribution of intoxicating liquor as a "common nuisance."³⁷ Upholding the mandatory closure of two breweries, the Court ruled that no unconstitutional taking of property had resulted from the state's action. Writing for the majority, Justice Harlan declared:

The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not -- and, consistently with the existence and safety of organized society, cannot be -- burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.³⁸

Justice Harlan left no doubt that the exercise of private property rights in the United States is subject to restraints imposed under the police power, which includes the authority to prevent property uses that our legislatures deem "hurtful to society" or "prejudicial to the general welfare."³⁹ The Court stated clearly that the "just compensation" clause does not protect such harmful uses of land.

The Court has repeatedly upheld the ability of courts and legislatures to respond flexibly to changing circumstances and social values without compensating property owners for resulting limitations on land use. For example, in the early twentieth century, the advent of the petroleum era introduced new public safety concerns, initially related to immediate hazards such as the risk of storage tank explosions rather than broader problems of environmental contamination. In 1919, the Court decided Pierce Oil Corp. v. City of Hope,⁴⁰ in which an oil company challenged a city ordinance forbidding the storage of more than small quantities of petroleum and gasoline within 300 feet of any dwelling. Citing concerns about "disastrous explosions," the Court held the City of Hope, Arkansas, to be lawfully exercising the police power in applying the ordinance to storage tanks located near a railroad right of way and rejected a claim that the oil company had been deprived of property in violation of the Fourteenth Amendment.

Emphasizing the inherently flexible and adaptive nature of the police power, Justice Holmes delivered the unanimous opinion of the Court: "The power 'is a continuing one, and a business lawful today may in the future, because of the changed situation, the growth of population or other causes, become a menace to the public health and welfare, and be required to yield to the public good.'"⁴¹

Seven years later, in Euclid v. Ambler Realty Co.,⁴² the Supreme Court again pointed to changing physical circumstances -- most notably, population growth -- as validating a local zoning ordinance that reserved certain areas exclusively for single family housing:

Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even a half century ago, probably would have been rejected as arbitrary and oppressive.⁴³

Here, as in Pierce Oil, the Court focused on the immediate, local impacts of the disputed state action, and found the zoning provision to bear "a rational relation to the health and safety of the community."⁴⁴ Citing numerous state [24 ELR 10524] court decisions and referring to expert studies on zoning practices, the Court described the segregation of residential, commercial, and industrial zones as advancing such lawful purposes as the creation of quiet neighborhoods, enhanced fire response capability, improved traffic safety, and a lower risk of contagion through the separation of residential areas from congested commercial and industrial districts.⁴⁵

In Miller v. Schoene,⁴⁶ decided in 1928, the Court held that the just compensation clause did not require the Commonwealth of Virginia to compensate the owners of cedar trees for the value of trees ordered destroyed by the Commonwealth to protect apple trees from disease. It was not necessary to "weigh with nicety the question whether the infected cedars constitute a nuisance according to common law; or whether they may be so declared by statute."⁴⁷ In its 1987 decision in Keystone Bituminous Coal Ass'n v. DeBenedictus, the Court wrote approvingly of the denial of compensation in Miller, stating: "[I]t was clear that the State's exercise of its police power to prevent the impending danger was justified and did not require compensation."⁴⁸ The Court in Keystone reaffirmed this point by denying compensation to coal companies that were required by Pennsylvania law to leave pillars of coal in place in underground mines to support homes and public buildings on the surface.⁴⁹ Even the dissenters in Keystone acknowledged that "a taking does not occur where the government exercises its unquestioned authority to prevent a property owner from using property to injure others."⁵⁰

In Lucas v. South Carolina Coastal Council,⁵¹ the Court considered whether South Carolina needed to compensate the owner of two building lots who claimed that he had lost all of the economic value of his property because of prohibitions on construction. Justice Scalia, writing for the majority, ruled that in cases where governmental action deprived an owner of all value, compensation would be required unless the legislation was consistent with limitations inherent in "background principles of nuisance and property law."⁵² The governments' right to work an uncompensated total taking of real property is limited to the scope of private nuisance law and the states' "complementary power to abate nuisances."⁵³ The Court acknowledged, however, the evolving nature of these limiting background principles, stating that "changed circumstances or new knowledge may make what was previously permissible no longer so."⁵⁴ In listing examples of situations under which background principles would permit a total taking without just compensation, the Court included "the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault."⁵⁵

The concurring and dissenting opinions in Lucas reinforce the need for a dynamic interpretation of harm prevention that is responsive to social and environmental change. Justice Kennedy stated in his concurrence: "The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society. The State should not be prevented from enacting new regulatory initiatives in response to changing conditions."⁵⁶ Justice Stevens echoed this concern in his dissent:

We live in a world in which changes in the economy and the environment occur with increasing frequency and importance. If it was wise a century ago to allow Government "the largest legislative discretion" to deal with "the special exigencies of the moment," Mugler, 123 U.S., at 669, it is imperative to do so today. The rule that should govern a decision in a case of this kind should focus on the future, not the past.⁵⁷

In rulings reaching back more than a century, the Court has recognized the power of legislatures to impose new duties without the payment of compensation, in order to prevent identified harms. The Lucas decision primarily serves to clarify that a "total takings" claim cannot be defeated by a legislature's mere "recitation of a noxious use justification."

The Natural-Use Doctrine

An important strand in the development of sustainable use principles is the "natural-use" doctrine. This doctrine, with centuries-old roots in the common law,⁵⁸ holds that "just compensation" is not required when vulnerable areas such [24 ELR 10525] as privately owned wetlands, riparian forests, and endangered species habitats are lawfully restricted to uses that do not disrupt the long-term biological stability of the particular parcels themselves or the broader ecosystems of which they are a part.⁵⁹ In these areas, "natural" or "normal traditional" uses are the core of the property's value protected by the Fifth Amendment.⁶⁰

The natural-use doctrine's seminal case, Just v. Marinette County, was decided in 1972. Four years earlier, the owners of shoreland property along a navigable lake in Wisconsin had violated a county ordinance by failing to obtain a permit before depositing some 1,040 yards of sand on their wetlands falling within an officially designated conservancy district. When county authorities sought to fine the owners for this violation and enjoin them from undertaking any further fill activities, the owners brought suit challenging the constitutionality of the conservancy district designation and the landfill restrictions. On appeal, the Wisconsin Supreme Court upheld the constitutionality of the county ordinance, referring to the state of Wisconsin's authority under the police power "to prevent pollution and to protect the waters of this state from degradation."⁶¹

In describing the natural uses suitable to the Justs' wetland acreage, the court referred to relevant provisions in the challenged county zoning ordinance enumerating the "Permitted Uses" of shoreland property:

(1) Harvesting of any wild crop such as marsh hay, ferns, moss, wild rice, berries, tree fruits and tree seeds.

(2) Sustained yield forestry subject to [certain restrictions] relating to the removal of shore cover.

(3) Utilities such as, but not restricted to, telephone, telegraph and power transmission lines.

(4) Hunting, fishing, preservation of scenic, historic and scientific areas and wildlife preserves.

(5) Non-resident buildings used solely in conjunction with raising water fowl, minnows, and other similar lowland animals, fowl or fish.

(6) Hiking trails and bridle paths.

(7) Accessory uses.

(8) Signs, subject to [certain] restriction[s].…⁶²

The court noted that these uses, "consistent with the nature of the land," were allowed on the property, and that there were other "Conditional Uses" that could be authorized by special permit if they were found to be environmentally sustainable.⁶³ By filling wetland acreage on their property without such a permit, the owners were found to have exceeded their constitutionally protected rights, and the county was found to have acted lawfully in fining them and barring them from causing further harm to the contested property:

An owner of land has no absolute and unlimited right to change the essential natural character of his land so as to use it for a purpose for which it was unsuited in its natural state and which injures the rights of others. The exercise of the police power in zoning must be reasonable and we think it is not an unreasonable exercise of that power to prevent harm to public rights by limiting the use of private property to its natural uses.⁶⁴

To establish the necessary relationship between the contested property use restrictions and broader state interests, the Just court emphasized the essential function that wetlands play in sustaining the ecological stability of surrounding waters. Changing knowledge and public sensibilities were central to its reasoning:

Swamps and wetlands were once considered wasteland, undesirable, and not picturesque. But as the people became more sophisticated, an appreciation was acquired that swamps and wetlands serve a vital role in nature, are part of the balance of nature and are essential to the purity of the water in our lakes and streams.⁶⁵

Decisions by other state courts have echoed the Wisconsin Supreme Court's natural-use reasoning in Just.⁶⁶ In Sibson v. New Hampshire, for example, the Supreme Court of New Hampshire upheld the denial of a permit to fill coastal marshland, reasoning that the government's action "denied plaintiffs none of the normal traditional uses of the marshland including wildlife observation, hunting, haying of marshgrass, clam and shellfish harvesting, and aesthetic purposes."⁶⁷ The challenged government action was held not to have interfered in any way with the property owners' current uses of the marsh, but rather "prevented a major change in the marsh that plaintiffs seek to make for speculative profit."⁶⁸

In justifying uncompensated restrictions on property uses in ecologically vulnerable areas such as wetlands and floodways, the Just court as well as other tribunals advancing a natural-use doctrine or its equivalent have had to grapple with the traditional conception that state actions promoting nature conservation confer a public benefit, potentially giving rise to claims for compensation by owners asserting [24 ELR 10526] economic loss.⁶⁹ The court in Just addressed this concern by stressing that the contested ordinance's dominant purpose was to prevent a significant, identified harm to the public -- a legitimate police power function: "In the instant case we have a restriction on the use of a citizen's property, not to secure a benefit for the public, but to prevent a harm from the change in the natural character of the citizens' property." Preventing pollution of the state's navigable waters, the court continued, "is not, in a legal sense, a gain or a securing of a benefit by the maintaining of the natural status quo of the environment."⁷⁰

In Graham v. Estuary Properties,⁷¹ the Florida Supreme Court reiterated the maintaining-the-status-quo reasoning of the court in Just, upholding the Florida Land and Water Adjudicatory Commission's denial of a permit for a massive real estate development scheme that would have included extensive filling of wetlands. Denying the permit, the court reasoned, prevented the pollution of public waterways, an identifiable harm.⁷²

Other cases have found that reasonable development restrictions in wetland areas fall within the lawful harm prevention mandate of the state police power. In Claridge v. New Hampshire Wetlands Board, the Supreme Court of New Hampshire affirmed the denial of a fill permit for saltmarsh property where the proposed filling "would have irreparably diminished the marsh's nutrient producing capability for coastal habitats and marine fisheries."⁷³

The natural-use doctrine espoused by the Just line of cases has been heralded as a significant turning point in judicial reasoning on private property rights and responsibilities in ecologically sensitive areas.⁷⁴ Setting aside certain definitional uncertainties that arise with respect to the scope of activities appropriately considered natural uses,⁷⁵ the doctrine does offer a reassuring, if somewhat inchoate, status of heightened protection to vulnerable areas. The doctrine's significance is limited, however, by its primary feature: The explicit and quite exclusive targeting of areas requiring special protection.⁷⁶

Special safeguards for critical areas are an appropriate and necessary feature of environmentally responsible land-use planning in the United States. The ongoing assault on our nation's wetlands provides just one illustration of this need: Over half of the approximately 215 million acres of once existing wetlands have been lost, and this loss continues at a rate of at least 100,000 acres per year.⁷⁷

[24 ELR 10527]

Yet the absence of effective land stewardship in the United States has imperiled "ordinary" land resources as well. Unsound farming practices currently cause excessive soil losses on approximately 286 million acres of agricultural land.⁷⁸ Also startling is the conversion of farmland to nonagricultural use, estimated at 1.5 million acres per year, resulting in a projected 12 percent loss of cropland between 1982 and 2030.⁷⁹ Farmland decline is but one consequence of the pell-mell pattern of suburban and exurban development that has dominated U.S. subdivision planning since World War II. Other negative ecological impacts include health endangering air pollution resulting from mounting automobile dependence, surface water contamination from road and highway runoff, and soil erosion and forestland depletion caused by residential and commercial developments over widely dispersed areas.⁸⁰

In light of the adverse impacts of poorly planned development on "ordinary" as well as "sensitive" land and related resources, special safeguards for sensitive areas must serve as but one feature of a larger, more comprehensive commitment to sustainable land use. Levels of regulation may well be different for different types of land, and for different kinds of activities.⁸¹ Yet within this broader framework, government actions reasonably related to the prevention of environmental harm should not trigger the payment of compensation for economic losses.

Land-Use Planning

Over the past quarter-century, numerous states and, to a more limited extent, the federal government have made progress toward embracing environmental protection principles within the context of land-use laws and policies.⁸² The trend is perhaps most widely evident in state and federal laws that -- like the natural-use doctrine -- offer special protections to areas conventionally regarded as environmentally sensitive, most notably our freshwater wetlands, coastal areas, and endangered species habitats.⁸³ Addressing a major deficiency in the natural-use doctrine, however, a number of states have enacted comprehensive land-use planning laws, extending significant protections to all lands. While most land-use regulation in the United States is carried out by local governments, a significant number of state-level efforts have legislatively embodied concerns for sustainable uses of land, applying modern understandings of population, economic development, and environmental protection. These efforts build on our common law and statutory heritage of harm prevention.

In the last 25 years, nine states have enacted statewide growth management and environmental planning efforts: Vermont, Oregon, Florida, New Jersey, Maine, Rhode Island, Georgia, Washington, and Maryland.⁸⁴ While differing in their particulars, [24 ELR 10528] each of these programs reflects an expanded understanding of harm prevention in the context of states where economic and demographic changes have threatened environmental quality and placed new burdens on economic and natural resources. While in Blackstone's time it was easy enough for the courts to require a property owner "to find some other place to do that act, where it will be less offensive,"⁸⁵ modern conditions and a better understanding of the relationships among resources necessarily involve the state in deciding where that place will be.

By accommodating changes in physical conditions and human awareness, legislation can fill some of the gaps left by traditional nuisance law. Designed to carry out this function, comprehensive land-use planning statutes are firmly rooted in nuisance doctrine as a dynamic force in preventing physical as well as social harms. Just as legislatures of old came to understand that prohibiting tanneries and slaughterhouses from discharging to drinking water supplies was essential to disease prevention -- a remarkable advance over prior theories of disease -- so do modern legislatures reflect an understanding of causation and injury that is better suited to today's more pervasive environmental assaults. Modern land-use statutes reflect at least two concepts embodying an improved understanding of causation and injury: First, that injury can be and often is caused by cumulative impacts, and second, that harm has a temporal dimension and cannot be limited simply to those currently affected by contemporary land uses.

Vermont

In 1970, the Vermont legislature enacted the state's first law addressing the need for comprehensive statewide land-use planning.⁸⁶ The Vermont Land Use and Development Law, more commonly known as Act 250, responded to growing concerns within the state about the social, economic, and environmental impacts of unregulated development at a time when Vermont was experiencing an unprecedented rise in popularity as a recreational resource, drawing visitors as well as urban exiles from major metropolitan areas throughout the Northeast.⁸⁷ In its declaration of intent, Act 250 decried the absence of effective land-use controls and called for planned, environmentally sustainable development of lands within the state:

Whereas, the unplanned, uncoordinated and uncontrolled use of the lands and the environment of the state of Vermont has resulted in usages of the lands and the environment which may be destructive to the environment and which are not suitable to the demands and needs of the people of the state of Vermont; and

Whereas, a comprehensive state capability and development plan and land use plan are necessary to provide guidelines for utilization of the lands and environment of the state of Vermont and to define the goals to be achieved through land environmental use, planning and control; and.…

Whereas, it is necessary to regulate and control the utilization and usages of lands and the environment to insure that, hereafter, the only usages which will be permitted are not unduly detrimental to the environment, will promote the general welfare through orderly growth and development and are suitable to the demands and needs of the people of this state;

Now, therefore, the legislature declares that … the state shall … creat[e] a state environmental board and district environmental commissions conferring upon them the power to regulate the use of lands and to establish comprehensive state capability, development and land use plans.…⁸⁸

As evidenced by the expansive scope of Act 250's declaration of intent, the statute's drafters clearly sought to reach beyond the protection of sensitive ecological habitats. This broader sweep was reinforced by the capability and development plan adopted by the Vermont legislature in 1973. Among the plan's objectives were the "[p]reservation of the agricultural and forest productivity of the land, … conservation of the recreational opportunity afforded by the state's hills, forests, streams and lakes, wise use of the state's non-renewable earth and mineral reserves, and protection of the beauty of the landscape."⁸⁹ The plan's intended scope extended to the preponderance of land and natural resources within the state.

Further distinguishing Vermont's plan from laws and policies focusing solely on sensitive habitats was its embrace of abroad set of goals that extended well beyond the minimization of adverse impacts on particular ecological resources. Strip development along highways and scattered residential development, for example, were discouraged because they "cause increased cost of government, congestion of highways, the loss of prime agricultural lands, overtaxing of town roads and services and economic or social decline in the traditional community center."⁹⁰ In fulfillment of Vermont citizens' "basic need" for decent housing, the plan called for new and rehabilitated housing that is "safe and sanitary; … located conveniently to employment and commercial centers; and, coordinated with the provision of necessary public facilities and utilities.…"⁹¹ In addition, energy conservation measures were to be "actively encouraged" in order to slow the depletion of limited resources and to minimize the production of wastes that are harmful to the environment.⁹²

[24 ELR 10529]

Oregon

The state of Oregon launched its comprehensive statewide land-use planning initiative in 1969, leading to the passage of a framework law in 1973, whose purpose, in the words of the Oregon Supreme Court, was "to substitute a systematic decisional process based on consideration of all relevant facts, affected interests and public policies, for the prevailing practice of inconsistent land-use decision-making."⁹³ As part of this "systematic decisional process," the Oregon legislature instructed the state's Land Conservation and Development Commission to draft and approve a series of Planning Goals targeted at a broad range of objectives, including preserving the quality of air, water, and land resources; conservation of farmland as well as scenic and open spaces; and protection of property against damage caused by floods, landslides, and other natural disasters.⁹⁴ Addressing the need for a more rational method of managing economic and demographic growth, the legislature also called for the adoption of goals "[t]o provide for an orderly and efficient transition from rural to urban land use."⁹⁵

In devising a goal-driven process for guiding land-use decisions in rural, "urbanizable,"⁹⁶ and urban areas, Oregon stands with a number of states at the forefront of promoting a comprehensive strategy for land-use planning.⁹⁷ The Supreme Court of Oregon characterized the underlying "impetus"⁹⁸ that fueled the push for comprehensive land-use controls as resulting from "legislative concern that state intervention was needed to stop a process of cumulative public harm resulting from uncoordinated land use."⁹⁹ The court supported its finding by quoting Senate Bill 100, which pointed to "[u]ncoordinated use of lands" as "threaten[ing] the orderly development, the environment of this state and the health, safety, order, convenience, prosperity and welfare of the people of this state.'"¹⁰⁰ This expanded conception of harm prevention, addressing the need to safeguard against the aggregated as well as the individual, localized impacts of land and resource exploitation, is one of two key sustainable-use principles discussed below.

Dolan v. City of Tigard

Oregon's land-use management law requires all Oregon cities and counties to adopt comprehensive plans that are consistent with the statewide planning goals. The plans, in turn, are implemented by land-use regulations.¹⁰¹ In 1994, the U.S. Supreme Court considered one application of these regulations in Dolan v. City of Tigard,¹⁰² a case which arose when the owner of a chain of plumbing and electric supply stores objected to conditions placed on her proposal to construct a new building and pave a parking area on a lot abutting a perennial stream. The city of Tigard had adopted a master drainage plan pursuant to state requirements. Under this plan, floodplains are to be maintained free of structures and greenways are to be created to minimize flood damage to buildings and other improvements. The plan also provides for channel improvements to reduce flooding. The city further requires property owners in the central business district to maintain 15 percent of their land in open space. Finally, the city adopted a plan for a pedestrian/bicycle pathway to encourage alternatives to automobile dependence for local trips.¹⁰³

[24 ELR 10530]

Pursuant to these plans, the city of Tigard conditioned the owner's building permit upon her agreement to dedicate land within the 100-year floodplain and the adjacent 15 feet for two purposes: (1) creation of a public greenway along Fanno Creek to minimize flooding that would be exacerbated by the proposed development, and (2) construction of a bicycle path within the greenway to relieve traffic congestion potentially increased by the store's expansion. These "exactions" were upheld by the Oregon Supreme Court.¹⁰⁴

In a 5-4 decision written by Chief Justice Rehnquist, the U.S. Supreme Court reversed and remanded, holding that the two "exactions" did not meet constitutional standards. Justice Rehnquist took particular care to explain that the case did not involve a takings challenge to a general scheme of land-use regulation:

[T]he authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long ago as our decision in Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).… A land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land." Agins v. Tiburon, 447 U.S. 255, 260 (1980).¹⁰⁵

The Court, however, distinguished the situation in Dolan from the types of land-use regulations that it had upheld in the past. First, Dolan involved an adjudicative decision applying conditions to a building permit for an individual parcel, as distinct from the essentially legislative determinations at issue in many of the Court's prior rulings. Second, rather than simply limiting the uses the owner might make of her parcel, the determination at issue requires that she deed portions of it to the city.¹⁰⁶

The Court in Dolan defined a two-step analysis for exactions cases: "In evaluating petitioner's claim, we must first determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition exacted by the city. Nollan [v. California Coastal Commission], 482 U.S. [825], at 837 [(1987)]. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development."¹⁰⁷

The Court found that the essential nexus test was met by the exactions, since prevention of flooding and reduction of traffic congestion are legitimate public purposes that are sufficiently related to limitations on development along the 100-year floodplain at issue. The proposed expansion of the petitioner's store and paving of a gravel parking lot, the Court noted, would expand the property's impervious surface and increase the amount of stormwater runoff. Similarly, the city's requirement for a pedestrian/bicycle pathway might "remove potential vehicles from streets, resulting in an overall improvement in total transportation system flow."¹⁰⁸

But the Court found that the second test was not met. Justice Rehnquist explained: "We think a term such as 'rough proportionality' best encapsulates what we hold to be the requirement of the Fifth Amendment."¹⁰⁹ Although "[n]o precise mathematical calculation is required," the Court held that the city must make an "individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."¹¹⁰ Although the city's open space requirement was sufficiently related to flood control, "the city demanded more -- it not only wanted petitioner not to build in the floodplain, but it also wanted petitioner's property along Fanno Creek for its Greenway system. The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control."¹¹¹

The Court addressed the issue of the pedestrian/bicycle pathway in this manner:

Dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use. But on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by the petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway "could offset some of the traffic demand … and lessen the increase in traffic congestion."¹¹²

While noting that floodplain and pedestrian/bicycle pathway dedications can be constitutionally valid, the Court in Dolan simply held that the city had failed to carry its burden of proof in this particular case.¹¹³ Accordingly, Dolan's larger significance may lie primarily in the Courts' continued recognition of the broad, legitimate scope of state land-use regulation.

[24 ELR 10531]

Federal Land-Use Planning

Comprehensive planning that reflects sustainability goals need not be limited to state laws. Indeed, numerous (ultimately unsuccessful) land-use planning proposals were introduced in the U.S. Congress in the early 1970s.¹¹⁴ One of the prime proponents of this federal policy direction was Senator Henry M. Jackson, Chairman of the Senate Committee on Interior and Insular Affairs, who introduced a succession of bills substantially aimed at coordinating, facilitating, and funding state efforts to develop comprehensive land-use planning capabilities. Senator Jackson warned that the absence of land-use planning was allowing private interests to overwhelm broader public concerns:

Today, most land use decisions remain almost totally private decisions, even though they often result in public costs far beyond the proprietary interest of the decision-maker.… The Nation can no longer permit public or private decisions to go forward in disregard of the general public demand for environmental quality. We must impose upon both public and private proposals criteria which will prevent unthinking, unnecessary environmental impairment and which will prohibit the loss of important values in the name of short-term gain or profit.¹¹⁵

Despite bipartisan commitment to a federal land-use planning initiative,¹¹⁶ neither the Jackson Bill nor a narrower proposal favored by the Nixon Administration became law.¹¹⁷ In 1972, however, Congress enacted the Coastal Zone Management Act (CZMA) to support state planning and regulation in the coastal zone.¹¹⁸ In providing for the preparation and implementation of coastal zone management plans by the states, the CZMA required "consistency" of development actions and federal activities with such plans.¹¹⁹

Existing land-use planning statutes and regulatory programs offer promising examples of constitutionally valid, albeit under used, approaches to incorporating sustainability considerations into traditional legal analysis. They serve as an important foundation for the emerging sustainable-use doctrine.

The Sustainable-Use Doctrine of Property Rights

Judicial and legislative trends point to a rearticulation of traditional principles of property rights and responsibilities to reflect a modern understanding of causation and injury. These trends validate individual economic interests so long as their exercise does not jeopardize the present or future viability of valued environmental assets, both in the immediate vicinity of the affected property and in the broader environment. The emerging sustainable-use doctrine engages at least the following two inquiries:

(1) What are the anticipated cumulative impacts of the contested property use?

(2) Will the proposed property use deny future generations the use and enjoyment of ecological resources to which they should be entitled?

Protection Against Cumulative Impacts

Cumulative environmental impacts occur in many dimensions. In some cases they involve numerous small-scale stressors that overtax biological systems, e.g., water pollution discharges that overwhelm the natural cleansing power of streams. In others, they may involve compounding effects, e.g., habitat losses making species more susceptible to disease because of overcrowding into smaller [24 ELR 10532] areas.¹²⁰ Recognizing the importance of these various factors, federal NEPA regulations require that environmental impact statements assess the cumulative impacts of proposed major federal actions significantly affecting the environment.¹²¹

Cumulative impacts analysis provides an essential means of accounting for the full environmental costs of seemingly isolated individual activities. The analysis involves standard chains of causation, but gives greater attention to complex ecological interactions than older nuisance cases, which typically assumed a single cause for each impact. Such analysis asks, for example, whether a proposed property use, in combination with other existing and reasonably foreseeable uses, will endanger valued ecological and economic assets, such as surface and underground water resources, species biodiversity, safe and productive soils, and regional air quality.¹²² To be effective, regulatory actions may need to address more than one cause of pollution or habitat loss.¹²³

Environmental laws have long been crafted to guard against cumulative impacts of pollutants.¹²⁴ By constraining some damaging land-use practices, particularly in environmentally sensitive areas, state land-use planning laws have further advanced the effort to tackle a number of complex, cumulative environmental hazards. Moreover, the courts have begun to articulate a concept of cumulative impacts that is central to the development of a broader doctrine of sustainable use.

While the Supreme Court of Oregon has referred to the "cumulative public harm" caused by uncoordinated land uses,¹²⁵ cumulative impacts reasoning has perhaps been best explicated by the Supreme Court of New Jersey in Gardner v. New Jersey Pinelands Commission.¹²⁶ The court in that case upheld a deed restriction limiting a farm owner's property to agricultural uses in the ecologically sensitive New Jersey Pinelands. After taking note of the "wide variety of rare, threatened and endangered plant and animal species"¹²⁷ harbored by the Pinelands as well as the vast, 17-trillion gallon aquifer that underlies the area,¹²⁸ the court declared that the New Jersey Pinelands Protection Act and its regulations "substantially advance legitimate and important government objectives"¹²⁹ by safeguarding the area's environment and protecting its water supply:

[A] proposed development that may constitute only a small insult to the environment does not lessen the need to avoid such an offense. The cumulative detrimental impact of many small projects can be devastating.… "If exemptions should be granted because development on individual tracts would impair only minutely the entire resources of the Pinelands, the cumulative effect of such exemptions would defeat the legislative goals of the Pinelands Protection Act."¹³⁰

Cumulative impacts analysis was also central to the California First District Court of Appeal's ruling in Candlestick Properties v. San Francisco Bay Conservation and Development Commission,¹³¹ where a regional commission's denial of a permit to fill a parcel of tidal wetland in San Francisco Bay was upheld as a lawful exercise of the police power not requiring the payment of just compensation. Deferring to the state legislature as primarily responsible for determining the appropriate property-use restrictions promulgated under the police power, the court stated:

[T]he Legislature has determined that the bay is the most valuable single natural resource of the entire region and changes in one part of the bay may also affect all other parts; that the present uncoordinated, haphazard manner in which the bay is being filled threatens the bay itself and is therefore inimical to the welfare of both present and future residents of the bay area; and that a regional approach is necessary to protect the public interest in the bay.¹³²

[24 ELR 10533]

The Candlestick Properties ruling, in rejecting the "uncoordinated, haphazard" filling of the bay, affirmed the vital role that regional planning must play in safeguarding valued ecological resources. Validating the "strong public purpose"¹³³ served by the challenged law, the court quoted from statutory language warning that "further piecemeal filling of the bay … may destroy the irreplaceable feeding and breeding grounds of fish and wildlife in the bay, may adversely affect the quality of bay waters and even the quality of air in the bay area, and would therefore be harmful to the needs of the present and future population of the bay region."¹³⁴

Faced with this strong legislative recognition of ecological interdependence, the court refused to view individual landfill operations as isolated events with minimal environmental impacts.¹³⁵

Cumulative impacts are a reasonable basis for government action that should not be encumbered by the obligation to provide compensation to affected property owners. In Dolan, the floodplain and transportation measures at issue were predicated on the cumulative impacts of human activities in the Fanno Creek watershed and the city's central business district. While a bare majority of the Court found that exactions requiring an owner to deed property to the local government required more particularized justification in order to be consistent with the just compensation clause, the Court acknowledged the legitimacy of the public purposes served by the contested measures.¹³⁶

In addressing any takings claim arising from a regulatory action, a court must ask whether the action that is prevented -- in combination with other previous and reasonably foreseeable actions -- will produce harm to a public resource or injure members of the public in the manner of a public nuisance, or specific individuals in the manner of a private nuisance. If the answer is yes, then -- consistent with more than 100 years of constitutional jurisprudence -- the claim must be denied. Similarly, legislatures should trace with care the chains of causation they have in mind if regulation is intended to deal with cumulative impacts.¹³⁷

Safeguarding the Interests of Future Generations

Historically, court decisions and statutory language have tended to define environmental problems largely in spatial terms, relating to the impacts of particular land uses on adjacent properties or, more recently, on regional ecosystems. At least as importantly, environmental concerns also embrace a temporal dimension, looking toward the long-term impacts of polluting activities on human health and addressing the rights of future generations to live in a world in which vital resources have not been exhausted and some semblance of ecological balance has been maintained.¹³⁸ This latter, intergenerational aspect of environmental governance is of particular relevance to the development of a sustainable-use doctrine.

In certain respects, judicial sensitivity to the needs of future generations is a logical extension of the well-established judicial doctrine, discussed earlier, of responsiveness to changing values and circumstances.¹³⁹ Justice Stevens, in his Lucas dissent, hinted at this linkage when he argued that contemporary definitions of property rights and responsibilities "should focus on the future, not the past."¹⁴⁰ In Candlestick Properties,¹⁴¹ the California First District Court of Appeal cited language in the applicable California statute providing for the regulation of individual parcels of land to prevent harm to both "the needs of the present and future population of the bay region."¹⁴² Even more explicit, however, is the New Jersey Superior Court's decision in Usdin v. State Department of Environmental Protection.¹⁴³ In declaring that the denial of a permit to build a warehouse in a designated floodway was a constitutional restraint on property use, the court in Usdin observed:

We are continually being made aware that our vital natural resources, our whole ecology and the quality of human [24 ELR 10534] life, may no longer be considered limitless or indestructible. For the sake of future generations we are encouraged to become prudent stewards of present assets. No longer are we able to afford the luxury of squandering nature or indiscriminate over-development, without consequential regard, and masquerading as free and private enterprise.… [T]he right to use land should be carefully measured against the environment's capacity to tolerate such a use.…¹⁴⁴

Safeguarding the interests of future generations, an emerging feature of court-made law, also finds voice in a number of state constitutions. Article XI of the Illinois Constitution, for example, declares: "The public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations."¹⁴⁵ In language that invests the Commonwealth of Pennsylvania with broad responsibilities as a public trustee of the state's air, water, and other natural resources, Pennsylvania's Constitution also takes future generations into account:

The People have a right to clean air, pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As a trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.¹⁴⁶

The interests of future generations are not addressed as explicitly in the U.S. Constitution. At least one major federal environmental law, however, affirmatively establishes the federal government's responsibility to factor these interests into its policies and programs. Section 101(b) of NEPA directs the government to "use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may … fulfill the responsibilities of each generation as trustee of the environment for succeeding generations."¹⁴⁷ This provision represented an ambitious new direction in public policy at the time of NEPA's enactment in 1969. While other environmental statutes, and even other provisions in NEPA,¹⁴⁸ call for the preservation of ecological balance and the prevention of environmental degradation -- purposes that have a distinctly prospective as well as present orientation -- NEPA is the most prominent among federal environmental statutes making an explicit declaration of an affirmative governmental obligation to safeguard the interests of future generations.¹⁴⁹

Provision for the protection of future generations is, in fact, a major function of federal environmental statutes. Nuclear wastes, under the Nuclear Waste Policy Act, must be deposited at sites whose integrity can be guaranteed -- to the extent possible -- for tens of thousands of years for the protection of future generations.¹⁵⁰ The surface mining of coal on private or public lands is, under the strictures of the federal Surface Mining Control and Reclamation Act of 1977, intended to be a "temporary use of the land,"¹⁵¹ again for the protection of future land users. The Endangered Species Act, while not explicitly referencing the welfare of future generations, implicitly does so by recognizing the need not only to conserve, but also to recover species that are already reduced to a fraction of their former vitality.¹⁵² Similarly, the provision for collection of natural resources damages in CERCLA reflects a future-oriented application of familiar legal concepts.¹⁵³ The major innovation there is the designation of natural resources public trustees in order to provide a clearly defined representative of the public's interests and an institution with the longevity to undertake restoration activities in the future.¹⁵⁴

State common law appears to be taking a similar path. In Davey Compressor Co. v. City of Delray Beach,¹⁵⁵ the Florida Supreme Court ruled that a city whose drinking water wells had been contaminated by illegal disposal of solvents was entitled to compensation sufficient to restore the groundwater for future use "even if the cost of such restoration exceeds the value of the real estate on which the wells are located."¹⁵⁶

[24 ELR 10535]

While domestic common law, statutes, and state constitutions have begun to acknowledge an interest of future generations in the land-use decisions of present-day property owners, the most explicit declarations of intergenerational obligation appear in a number of recently formulated international environmental treaties to which the United States has become a signatory. Most notably, the two major treaties to emerge from the United Nations Conference on Environment and Development set their sights firmly on ensuring the interests of future generations. In the preamble to the United Nations Framework Convention on Climate Change, the Parties declare their determination "to protect the climate system for present and future generations."¹⁵⁷ Similarly, the preamble to the United Nations Framework Convention on Biological Diversity declares that the Parties are "[d]etermined to conserve and sustainably use biological diversity for the benefit of present and future generations."¹⁵⁸ This commitment to future generations is reinforced more broadly by Principle 3 of the Rio Declaration on Environment and Development, which states: "The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations."¹⁵⁹

It is too soon to evaluate the degree to which the intergenerational obligations proclaimed in these and other international treaties may translate into laws and policies affecting privately held property in individual nations. In the United States, a clearer indication of the private property impacts of these treaties will have to await the enactment and implementation of laws designed to fulfill our nation's obligations under the conventions. Nevertheless, it is a virtual certainty that programs and policies aimed at minimizing global warming or protecting biological diversity -- if they are to be effective -- will strongly influence the uses of private property resources in the United States.

Clearly, federal, state, and local governments have the power to restrain and prevent harm to intergenerational interests -- acting through the police power, the commerce power, as trustees, or as parens patriae, on behalf of the commonweal. Just as modern jurists and legislators have begun to reckon seriously with the broader geographical impacts of environmentally harmful activities, so too must they find constructive ways to address the environmental effects of these activities over time.

Conclusion

Modern conceptions of environmental governance have come a long way from the days when, under common-law nuisance, the activities of lead smelters, tallowchandlers, livestock operations, and other polluters were evaluated largely, if not exclusively, in terms of contemporaneous impacts on neighboring property owners. As the broader environmental impacts of current land-use practices have become more clearly understood, traditional conceptions of harm prevention retain their vitality in law. Yet the momentous transformations in our nation's economy and environment over the past century require our legislatures and courts to update those conceptions constantly to safeguard our common environmental heritage.

The need to base land-use decisions on a careful evaluation of cumulative environmental impacts has gained an increasingly firm foothold through a range of environmental laws as well as through recent judicial rulings. Attention to the long-term consequences of environmentally damaging land uses is also emerging as a legitimate target of legislation and as a focus for judicial protection. Both of these trends reinforce the adaptive power of the law of harm prevention, linking the historic strength of nuisance law and the police power to the modern-day imperative of advancing the sustainable use of land and resources. The emerging sustainable-use doctrine -- with its deep roots in background principles of common law -- provides legislatures and courts with a strong basis for addressing the challenge of preserving environmental quality in a rapidly changing world.

1. See infra notes 78-80 and accompanying text.

2. Over the past decade, commercial developers, factory owners, mining companies, residential builders, and individual homeowners have challenged the constitutionality of government policies and actions, including the wetland protection provisions of the Federal Water Pollution Control Act and restrictions on building in floodways and coastal areas. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404. See, e.g., United States v. Riverside Bayview Homes, 474 U.S. 121, 16 ELR 20086 (1985) (regulatory jurisdiction over wetlands is not a taking); Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 22 ELR 21104 (1992) (state coastal commission's denial of developer's application for permit to build on beachfront property remanded for determination of whether state's denial of all economically beneficial use of developer's property can be justified under background principles of nuisance law); Florida Rock Indus. v. United States, 18 F.3d 1560, 24 ELR 21036 (Fed. Cir. 1994) (vacating determination that wetland permit denial had rendered mining company property valueless and remanding for determination of residual value).

3. The Fifth Amendment states, in relevant part: "No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." U.S. CONST. amend. V. The U.S. Supreme Court, in a number of recent rulings, has left many fundamental questions unanswered about the rights and responsibilities attached to property ownership. The takings implications of recent U.S. Supreme Court decisions have been exhaustively debated in numerous recent articles. See, e.g., Richard L. Lazarus, Putting the Correct "Spin" on Lucas, 45 STAN. L. REV. 1411 (1993); Joseph L. Sax, Property Rights and the Economy of Nature: Understanding Lucas v. South Carolina Coastal Council, 45 STAN. L. REV. 1433 (1993); John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1 (1993); Jon A. Kusler, The Lucas Decision: Avoiding "Taking" Problems With Wetland and Floodplain Regulations, 4 MD. J. CONTEMP. LEGAL ISSUES 73 (1992-1993); John R. Nolon, Footprints in the Shifting Sands of the Isle of Palms: A Practical Analysis of Regulatory Takings Cases, 8 J. LAND USE & ENVTL. L. 1 (1992); Lucas v. South Carolina Coastal Council: Colloquium, 10 PACE ENVTL. L. REV. 1 (1992). Most recently, in Dolan v. City of Tigard, the U.S. Supreme Court affirmed the importance and constitutional validity of land-use regulation, but raised the hurdle for local governments seeking to justify exactions. 24 ELR 21104 (U.S. 1994). See infra notes 101-13 and accompanying text.

4. The term "sustainable use" is borrowed from the concept of "sustainable development" introduced in WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1987) [hereinafter OUR COMMON FUTURE]. This work helped lay the groundwork for the 1992 United Nations Conference on Environment and Development, where more than 100 nations, including the United States, endorsed Agenda 21, a long-term commitment to sustainable development. UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, AGENDA 21, U.N. Doc. A/CONF.151/26, Aug. 12, 1992. Sustainable development has been defined as development that "meets the needs of the present without compromising the ability of future generations to meet their own needs." OUR COMMON FUTURE, supra, at 43. The concept has been endorsed in the United States by the President's formation of a national Council on Sustainable Development, Exec. Order No. 12852, 58 Fed. Reg. 35841 (June 29, 1993).

5. William H. Wilson, Nuisance as a Modern Mode of Land-Use Control, 46 WASH. L. REV. 47, 97 (1970) (citing J. FLEMING, THE LAW OF TORTS 365-66 (3d ed. 1965); RESTATEMENT (SECOND) OF TORTS § 821B cmt. a (Tentative Draft No. 15, 1969)).

6. Id.

7. J.R. Spencer, Public Nuisance -- A Critical Examination, 48 CAMBRIDGE L.J. 55, 64 (1989) (citing 19 Car. 2 cap. 3 s. 3).

8. "During her reign, Queen Elizabeth of England forbade the burning of coal in London during sessions of Parliament, and in 1661 A.D., there was a plan to remove all industries in the city of London to its leeward side and to plant sweet-smelling flowers and trees on the windward side." Bortz Coal Co. v. Air Pollution Comm'n, 279 A.2d 388, 391 (Pa. 1971) (citing Fumifugium National Smoke Abatement Society, Manchester, England (1953)).

9. Spencer, supra note 7, at 71 (citing Attorney General v. Luton Board of Health, 2 Jur. N.S. 180 (1856); Attorney General v. Birmingham Corp., 4 K. & J. 528, 70 E.R. 220 (1858)).

10. Id.

11. 3 WILLIAM BLACKSTONE, COMMENTARIES *218 (footnote omitted).

12. In upholding a lower court injunction barring the Pennsylvania Lead Company from operating its smelter in a manner that deposited "offensive and poisonous fumes and vapors" on neighboring property, the Supreme Court of Pennsylvania found useful guidance in English common law:

Lord Cranworth, in the case of St. Helen's Smelting Co. v. Tipping, 11 H.L. Ca. 652, quoting Mr. Justice Mellor, says: It must be plain that persons using a limekiln, or other works which emit noxious vapors, may not do an actionable injury to another, and that any place where such an operation is carried on so that it does occasion an actionable injury to another, is not, in the meaning of the law, a convenient place.

Appeal of Pennsylvania Lead Co., 96 Pa. 116, 127 (Pa. 1880).

13. 3 WILLIAM BLACKSTONE, COMMENTARIES *217 (footnote omitted). Blackstone also declared that establishing "any offensive trade" such as a tannery or a tallowchandlery was actionable as nuisance unless it was carried out in a remote location. Id. (footnote omitted).

14. Id.

15. MASS. GEN. L. ch. 111, § 122 (Law. Co-op. 1985 & Supp. 1994). Very similar language appears in the section of Hawaii's code pertaining to the removal and prevention of nuisances, originally enacted in 1869. See HAW. REV. STAT. § 332-1 (1985).

16. MD. CODE ANN., ENVIR. § 10-305(a)(2) (1993) (nuisances applicable to Cecil County and Allegany County). See also FLA. STAT. ANN. § 823.041 (West 1976) (declaring improper disposal of human bodies and animal carcasses a public nuisance); FLA. STAT. ANN. § 823.12 (West 1976 & Supp. 1994) (barring smoking in elevators as a public nuisance).

17. MD. CODE ANN., ENVIR. § 10-305(a)(4) (1993) (applicable to nuisances in Cecil County and Allegany County).

18. HAW. REV. STAT. § 332-1 (1985).

19. WASH. REV. CODE ANN. § 7.48.140(2) (West 1992).

20. Id. § 7.48.140(7).

21. 1 WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW: AIR AND WATER 2 (West Pub. Co. 1986).

22. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

23. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

24. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

25. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

26. Id. § 7401(a)(2), ELR STAT. CAA § 101(a)(2). Dangers to public health and welfare, injury to crops and livestock, property damage, and safety hazards -- these are all harms traditionally addressed through statutory and common-law nuisance doctrine. Even more explicit than the Clean Air Act in linking the prevention and control of environmental damage to traditional public nuisance doctrine was the Federal Water Pollution Control Act of 1948: "[T]he pollution of interstate waters in or adjacent to any State or States … which endangers the health or welfare of persons in a State other than that in which the discharge originates, is hereby declared to be a public nuisance." Pub. L. No. 845, § 2(d)(1), 62 Stat. 1155, 1156 (1948) (codified as amended at 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607).

27. 42 U.S.C. §§ 6972(a)(1)(B), 6973, ELR STAT. RCRA §§ 7002(a)(1)(B), 7003.

28. Middlesex City Board of Chosen Freeholders v. New Jersey, 645 F. Supp. 715, 721-22, 17 ELR 20475, 20477-78 (D.N.J. 1986) (citing S. REP. NO. 96-172, 96th Cong., 2d Sess. 5, reprinted in 1980 U.S.C.C.A.N. 5019, 5023). See Adam Babich, RCRA Imminent Hazard Authority: A Powerful Tool for Businesses, Governments, and Citizen Enforcers, 24 ELR 10122 (Mar. 1994).

29. 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).

30. Zabel v. Tabb, 430 F.2d at 201, 1 ELR at 20023.

31. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2 et seq.

32. Zabel, 430 F.2d at 211 n.24, 1 ELR at 20030 n.24. It is noteworthy that the Zabel court saw fit to cite NEPA in its decision despite the fact that it was enacted subsequent to the disputed permit denial.

33. 42 U.S.C. § 4331(a), ELR STAT. NEPA § 101(a).

34. See infra notes 36-57 and accompanying text.

35. See, e.g., Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900, 22 ELR 21104, 21111 (1992) (holding that the Takings Clause "does not require compensation when an owner is barred from putting land to a use that is proscribed by [existing rules or understandings of property and nuisance law]"); Gaskins v. People, 272 P. 662, 664 (Colo. 1928) (since one has no property right in a nuisance, state may summarily abate nuisance); see also infra notes 36-50 and accompanying text.

36. 123 U.S. 623 (1887).

37. Mugler v. Kansas, 123 U.S. at 655, 670.

38. Mugler, 123 U.S. at 669.

39. Id. at 663. Justice Harlan further reasoned: "[A]ll property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community." He described this obligation as "essential to the peace and safety of society." Id. at 665.

40. 248 U.S. 498 (1919).

41. Pierce Oil Corp. v. City of Hope, 248 U.S. at 500 (quoting Dobbins v. Los Angeles, 195 U.S. 223, 238 (1904)).

42. 272 U.S. 365 (1926).

43. Euclid v. Ambler Realty Co., 272 U.S. at 386-87.

44. Id. at 391.

45. Id. at 391-95 (citations omitted). It is unfortunate but hardly surprising that neither the Court in Euclid nor land-use planners at the time anticipated the broader environmental concerns that we now see as very directly resulting from the geographical segregation of residential, commercial, and industrial zones in many metropolitan areas. Later generations of jurists, planners, and politicians would be left to grapple with the profound ecological and aesthetic impacts of freeway sprawl and the adverse health consequences of air pollution caused by metropolitan area residents traveling ever-greater distances between home, work, shopping, schools, and recreational facilities. The lack of vision of land-use planners in the early part of this century -- and to this day in many areas -- reinforces the need to account for changing circumstances and public policy priorities.

46. 276 U.S. 272 (1928).

47. Miller v. Schoene, 276 U.S. at 280.

48. 480 U.S. 470, 490, 17 ELR 20440, 20445 (1987).

49. Keystone Bituminous Coal Ass'n v. DeBenedictus, 480 U.S. at 488, 17 ELR at 20444 (upholding a state's authority constitutionally to "protect the public interest in health, the environment, and the fiscal integrity of the area"). See Gaskins v. People, 272 P. 662, 664 (Colo. 1928) (since one has no property right in a nuisance, state may summarily abate nuisance); see also M & J Coal Co. v. United States, 30 Fed. Cl. 360, 24 ELR 21064 (Fed. Cl. 1994) (denying regulatory takings claim brought by coal company forced to leave coal in place to support surface structures). "The existence of a cognizable property right is a prerequisite to finding a governmental taking. The right to mine under a 15-degree plan was not part of plaintiffs' title when they purchased their rights to the Monongah mine. Accordingly, their takings claim which was founded on that right must fail. Plaintiffs cannot recover for deprivation of a right they never had." Id. at 368, 24 ELR at 21067.

50. Keystone, 480 U.S. at 511, 17 ELR at 20451 (citing Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Mugler v. Kansas, 123 U.S. 623 (1887)). These are all cases in which previously lawful activity -- quarrying, operating a brickyard, and operating a brewery -- was legislatively declared unlawful.

51. 112 S. Ct. 2886, 22 ELR 21104 (1992).

52. Lucas v. South Carolina Coastal Council, 112 S. Ct. at 2900, 22 ELR at 21111.

53. Lucas, 112 S. Ct. at 2900, 22 ELR at 21111.

54. Id. at 2901, 22 ELR at 21111.

55. Id. at 2900, 22 ELR at 21111.

56. Id. at 2903, 22 ELR at 21112 (citing Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)) (Kennedy, J. concurring).

57. Id. at 2922, 22 ELR at 21121 (Stevens, J., dissenting).

58. See James M. McElfish Jr., Property Rights, Property Roots: Rediscovering the Basis for Legal Protection of the Environment, 24 ELR 10231 (May 1994).

59. See Just v. Marinette County, 201 N.W.2d 761, 3 ELR 20165 (Wis. 1972). The Just doctrine has been reiterated and applied in subsequent rulings by other state courts. See, e.g., Carter v. South Carolina Coastal Council, 314 S.E.2d 327, 329 (S.C. 1984); Graham v. Estuary Properties, 399 So. 2d 1374, 1382, 11 ELR 20992, 20995 (Fla. 1981), cert. denied sub nom. Taylor v. Graham, 454 U.S. 1083 (1981); Claridge v. New Hampshire Wetlands Board, 485 A.2d 287, 290 (N.H. 1984); Sibson v. New Hampshire, 336 A.2d 239, 243, 5 ELR 20300, 20301 (N.H. 1975); Usdin v. State Dep't of Envtl. Protection, 414 A.2d 280, 288 (N.J. Super. Ct. Law Div. 1980).

60. Sibson, 336 A.2d at 243, 5 ELR at 20301. "The denial of the permit by the board did not depreciate the value of the marshland or cause it to become 'of practically no pecuniary value.' Its value was the same after the denial of the permit as before and it remained as it had been for milleniums." Id.

61. Just, 201 N.W.2d at 768, 3 ELR at 20169. Under Wisconsin's Navigable Waters Protection Act, which is cited by the court, the state is empowered to "authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this state's water resources." The purpose of these regulations as declared by the Act is "to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish and aquatic life; control building sites, placement of structure and land uses and reserve shore cover and natural beauty.…" Id. at 765 n.1, 3 ELR at 20167 n.1 (quoting Navigable Waters Protection Act, WIS. STAT. § 144.26 (West 1989)).

62. Id. at 765 n.3, 3 ELR at 20167 n.3 (quoting Marinette County Shoreland Zoning Ordinance No. 24, § 3.41 (1967)).

63. Id. at 768, 3 ELR at 20168. "Conditional Uses" listed in the county ordinance include: General farming; dams, power plants, flowages, and ponds; relocation of watercourses; filling, drainage, or dredging of wetlands; removal of top soil or peat; cranberry bogs; and piers, docks, and boathouses. Id. at 765 n.4, 3 ELR at 20167 n.4 (citing Marinette County Shoreland Zoning Ordinance No. 24, § 3.42 (1967)).

64. Id. at 768, 3 ELR at 20168 (emphasis added).

65. Id. at 767-68, 3 ELR at 20168.

66. The Wisconsin Supreme Court has reaffirmed the continuing vitality of Just in that state. M & I Marshall & Ilsley Bank v. Town of Somers, 414 N.W.2d 824 (Wis. 1987).

67. 336 A.2d 239, 243, 5 ELR 20300, 20301 (N.H. 1975).

68. Sibson v. New Hampshire, 336 A.2d 239, 243, 5 ELR 20300, 20301 (N.H. 1975).

69. In Just, the court relied on Professor Ernst Freund's treatise, which states: "It may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful.…" 201 N.W.2d at 767, 3 ELR at 20168 (quoting ERNST FREUND, THE POLICE POWER § 511, at 546-47 (1904)).

70. Just, at 767-68, 3 ELR at 20168. In Lucas, a majority of the U.S. Supreme Court minimized the importance of the traditional "takings" distinction between preventing harm and securing a public benefit, arguing that characterizing a government action as accomplishing one or the other is only a function of the competence of the legislature's staff. 112 S. Ct. 2886, 2898 n.12, 22 ELR 21104, 21110 n.12 (1992). That the distinction maintains some vitality, however -- and that the Court's concern lies more with the distinction's misuse than its validity -- is shown by the Court's further observations about the risk of property "being pressed into public service under the guise of mitigating serious public harm." Id. at 2895, 22 ELR at 21108 (citations omitted, emphasis added).

71. 399 So. 2d 1374, 1382, 11 ELR 20992, 20995-06 (Fla. 1981), cert. denied sub nom. Taylor v. Graham, 454 U.S. 1083 (1981).

72. The court observed:

It is true that the public benefits in that the bays will remain clean, but that is a benefit in the form of maintaining the status quo. [The developer] is not being required to change its development plan so that public waterways will be improved. That would be the creation of a public benefit beyond the scope of the state's police power.

Graham v. Estuary Properties, 399 So. 2d at 1382, 11 ELR at 20996. Of course, the scope of the power to prevent harm without paying compensation is not limited to maintenance of the status quo. Many nuisance cases have had the effect of restoring the status quo ante, e.g., requiring the abatement of noxious fumes. Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

73. Claridge v. New Hampshire Wetlands Board, 485 A.2d 287, 292 (N.H. 1984). The court distinguished the facts before it from its decision three years earlier in Burrows v. City of Keene, 432 A.2d 15 (N.H. 1981). Claridge, 485 A.2d at 289-90 for the court's discussion of its earlier ruling in Burrows. In Burrows, a city conservation commission's designation of a plaintiff's dry woodland property as part of a conservation district was held to be a taking where the city sought to achieve its purpose -- the creation of open space without compensation -- by blocking "all 'normal private development'" on the disputed property. 432 A.2d at 21.

74. See, e.g., David B. Hunter, An Ecological Perspective on Property: A Call for Judicial Protection of the Public's Interest in Environmentally Critical Resources, 12 HARV. ENVTL. L. REV. 311, 349-60 (1988); Sax, supra note 3, at 1438-39.

75. The list of "Permitted Uses" under the Marinette County Shoreland Zoning Ordinance at issue in Just, see text accompanying supra note 62, raises some question as to the clarity of the line that can be drawn between "uses consistent with the nature of the land" and those that are not. Marinette County Shoreland Zoning Ordinance, quoted in 201 N.W.2d 761, 768 n.3, 3 ELR 20165, 20167 n.3 (Wis. 1972). Are telephone, telegraph, and power transmission lines, for example, any less damaging to ecologically sensitive areas than an occasional, isolated dwelling? Recently raised concerns about the possible human health impacts of electromagnetic fields might raise doubts in this regard. U.S. EPA, EVALUATION OF THE POTENTIAL CARCINOGENICITY OF ELECTROMAGNETIC FIELDS EPA/600/6-90/005B (Review Draft, Oct. 1990). Moreover, these phone and power lines, whether overhead or subterranean, would inevitably require the preparation and maintenance of rights-of-way, necessitating the destruction of substantial areas of trees and undergrowth -- certainly among the primary habitats targeted for protection by the doctrine. One might also question whether sparse human settlement would be any more damaging to these fragile settings than "[s]ustained yield forestry," Marinette County Shoreland Ordinance No. 24, § 3.41(2), quoted in Just v. Marinette County, 201 N.W.2d at 768 n.3, 3 ELR at 20167 n.3, requiring access roads for logging vehicles and potentially causing substantial damage to saplings and other undergrowth as felled trees are dragged from the forest.

76. This singling out of highly vulnerable areas is favorably described by Hunter, supra note 74, at 358-59. With particular reference to wetlands, he observes: "Although all lands are connected to the ecosystem, not all lands are as fragile and ecologically essential as wetlands. Lands that are not considered to be ecologically essential would not receive special treatment under a natural use theory." By distinguishing ecologically critical lands from those that are less "essential," Hunter asserts that greater consistency in the application of legal rules can be achieved "because factual determinations will turn on objective scientific data," a feature that is "particularly desirable in takings cases as predictability will reduce unfairness." Id. at 359.

77. CONSERVATION FOUNDATION, PROTECTING AMERICA'S WETLANDS: AN ACTION AGENDA 8-12 (Final Report of the Wetlands Policy Forum 1988) (350,000 to 500,000 acres lost per year); THOMAS E. DAHL & C. E. JOHNSON, U.S. DOI, STATUS AND TRENDS OF WETLANDS IN THE CONTERMINOUS UNITED STATES, MID-1970's TO MID-1980's (1991) (290,000 acres lost per year); U.S. SOIL CONSERVATION SERVICE, 1991 UPDATE OF NATIONAL RESOURCES INVENTORY, WETLANDS DATA FOR NON-FEDERAL RURAL LANDS (108,000 acres lost per year). A recent survey of U.S. Army Corps of Engineers' districts conducted by a Washington, D.C., law firm suggests that 10,000 to 12,000 acres are lost annually pursuant to permits issued under FWPCA § 404. VIRGINIA ALBRECHT & BERNARD GOODE, WETLAND REGULATION IN THE REAL WORLD (1994).

78. See James E. Holloway & Donald C. Guy, Rethinking Local and State Agricultural Land Use and Natural Resource Policies: Coordinating Programs to Address the Interdependency and Combined Losses of Farms, Soils, and Farmland, 5 J. LAND USE & ENVTL. L. 379, 393 n.62 (citing THE SECOND RCA APPRAISAL: SOIL, WATER, AND RELATED RESOURCES ON NONFEDERAL LAND IN THE UNITED STATES: ANALYSIS OF CONDITIONS AND TRENDS 25 (1989) [hereinafter RCA APPRAISAL]). According to this source, soil losses resulting in a net loss of productivity affect approximately 173 million acres of cropland, 11 million acres of pastureland, 23 million acres of forest land, 70 million acres of rangeland, and 10 million acres of other lands. Id. (citing RCA APPRAISAL at 28).

79. Id. at 380 n.3 (citing RCA APPRAISAL at 4).

80. In most regions, geographical sprawl has substantially outstripped population growth. For example, in Maryland in 1970, a statewide population of 3.9 million occupied 0.69 million developed acres. Twenty years later, the state's population had grown to 4.7 million -- a 21 percent rise -- while the developed land area had jumped to 1.8 million acres -- an increase of nearly 160 percent. Philip J. Tierney, Maryland's 2020 Proposals: Strong Medicine for a Life Threatening Illness, J. ENVTL. L. 25 (1991) (citing PROTECTING THE FUTURE: A VISION FOR MARYLAND, REPORT OF THE GOVERNOR'S COMMISSION ON GROWTH IN THE CHESAPEAKE BAY REGION (Jan. 1991). Similarly, the Seattle metropolitan area experienced disproportionate land expansion during the same period, with the developed land area increasing by 87 percent while population grew by 38 percent. 4 EARTHWORD 23 (1992).

81. Land uses may be, like the legendary "pig in the parlor," Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926), ecologically harmless -- or even beneficial -- in some places but devastating in others.

82. The relative lag in tackling land-use issues directly has been described as "a perverse paradox in environmental law and policy," explainable, at least in part, by a political reluctance to encroach on deep-seated notions of private property autonomy. Henry L. Diamond, Land Use: Environmental Orphan, ENVTL. F., Jan./Feb. 1993, at 31.

Control of one's land is a defining theme in the American experience, a powerful emotion that reaches back to the original European settlement of the New World. While Americans have been willing to have their effluents regulated down to the level of parts-per-trillion, they strongly resist even the most general limits on the use of land.

Id.

83. See, e.g., 33 U.S.C. § 1344, ELR STAT. FWPCA § 404 (permits required to dredge or fill waters of the United States, including wetlands); 16 U.S.C. § 1533, ELR STAT. ESA § 4 (listing of species and designating critical habitat); Florida Environmental Land and Water Management Act, FLA. STAT. ANN. §§ 380.0552, 380.0558 (West 1988 & Supp. 1994) (designation of Florida Keys as area of critical state concern; creation of Florida Area of Critical State Concern Restoration Fund); OR. REV. STAT. §§ 197.405-.430 (1991) (designation of areas of critical concern, including enforcement of regulations on use and activities conducted therein); South Carolina Beachfront Management Act, S.C. CODE ANN. §§ 48-39-250 et seq. (Law. Co-op. Supp. 1990) (regulating construction of occupiable improvements in coastal areas); Vermont Planning & Development Act, VT. STAT. ANN. tit. 24, §§ 4411, 4412 (1992) (shoreland zoning, regulation of flood hazard areas).

84. See Act 250, VT. STAT. ANN. tit. 10, §§ 6001 et seq. (1984 & Supp. 1993); Act 200, VT. STAT. ANN. tit. 24, §§ 4301 et seq. (1992 & Supp. 1993); OR. REV. STAT. §§ 197.005 et seq. (1991 & Supp. 1994); Florida State Comprehensive Planning Act of 1972, FLA. STAT. ANN. §§ 186.001 et seq. (West 1987 & Supp. 1994); Florida Environmental Land and Water Management Act of 1972, FLA. STAT. ANN. §§ 380.012 et seq. (West 1988 & Supp. 1994); Local Government Comprehensive Planning and Land Development Regulation Act, FLA. STAT. ANN. §§ 163.3161 et seq. (West 1990 & Supp. 1994); N.J. STAT. ANN. §§ 52:18A-197 et seq. (West 1986 & Supp. 1994); ME. REV. STAT. ANN. tit. 30-A §§ 4301 et seq. (West Supp. 1993); Rhode Island Comprehensive Planning and Land Use Regulation Act, R.I. GEN. LAWS §§ 45-2212-1 et seq. (1991 & Supp. 1993); State Comprehensive Plan Appeals Board, R.I. GEN. LAWS §§ 45-22.3-1 et seq. (1991 & Supp. 1993); Regional Development Centers, GA. CODE ANN. §§ 50-8-30 et seq. (1990 & Supp. 1993); Metropolitan Area Planning and Development Commissions, GA. CODE ANN. §§ 50-8-80 et seq. (1990 & Supp. 1993); Coordinated and Comprehensive Planning by Counties and Municipalities, GA. CODE ANN. §§ 36-70-1 et seq. (1993); WASH. REV. CODE ANN. §§ 36.70A.010 et seq. (West 1991 & Supp. 1994); MD. ANN. CODE art. 66B, §§ 3.05, 3606, 7.03 (Supp. 1992); MD. CODE ANN., STATE FIN. & PROC. §§ 5-402,5-701-5-710, 5-7A-01, 5-7A-02 (Supp. 1993); MD. CODE ANN. STATE GOV'T, § 8-403H (1993). See generally JOHN DEGROVE, THE NEW FRONTIER FOR LAND POLICY: PLANNING AND GROWTH MANAGEMENT IN THE STATES (Lincoln Institute of Land Policy, 1992). California also has a long-standing land-use planning mandate that requires local plans to be consistent with a wide range of statewide mandates, including environmental mandates. CAL. GOV'T CODE §§ 65300 et seq. (Deering 1987 & Supp. 1994); CAL. PUB. RES. CODE § 21003 (Deering Supp. 1994) (environmental impact assessment).

85. 3 WILLIAM BLACKSTONE, COMMENTARIES *217.

86. VT. STAT. ANN. tit. 10, §§ 6001 et seq. (1984 & Supp. 1993).

87. See Thomas R. McKeon, State Regulation of Subdivisions: Defining the Boundary Between State and Local Land Use Jurisdiction in Vermont, Maine, and Florida, 19 ENVTL. AFF. L. REV. 385, 391-92 (1991).

88. 1969 Vt. Laws 250 (Adj. Sess.), § 1, quoted in VT. STAT. ANN. tit. 10, § 6001 (history) (1984).

89. 1973 Vt. Laws 85, § 7(a)(2), quoted in Act 250, VT. STAT. ANN. tit. 10, § 6042 (history) (1984). The plan states further that "[u]ses which threaten or significantly inhibit these resources should be permitted only when the public interest is clearly benefitted thereby." Id.

90. Id. § 7(a)(4)(A), quoted in Act 250, VT. STAT. ANN. tit. 10, § 6042 (history) (1984).

91. Id. § 7(a)(8)(A), quoted in Act 250, VT. STAT. ANN. tit. 10, § 6042 (history) (1984).

92. Id. § 7(a)(13), quoted in Act 250, VT. STAT. ANN. tit. 10, § 6042 (history) (1984). More than a broadly declared objective, energy conservation is given force, at least conceptually, through the permit application and review procedures established under Act 250. See generally VT. STAT. ANN. tit. 10, §§ 6081-6092 (1984 & Supp. 1993). A permit will only be granted under the statute if "the planning and design of the subdivision or development reflect the principles of energy conservation and incorporate the best available technology for efficient use or recovery of energy." VT. STAT. ANN. tit. 10, § 6086(a)(9)(F) (1984).

93. 1000 Friends of Oregon v. Wasco County Court, 703 P.2d 207, 212 (Or. 1985) (citing 1000 Friends of Oregon v. LCDC, 642 P.2d 1158, 1164 (Or. 1982)). The Supreme Court of Oregon describes the statewide land-use planning process as commencing with the passage, in 1969, of Senate Bill 10, 1969 Or. Laws 324, and culminating in the passage of Senate Bill 100, OR. REV. STAT. § 197 (1993), in 1973. Wasco County Court, 703 P.2d at 212.

94. OR. REV. STAT. § 215.515 (1993) (repealed 1977 Or. Laws § 766-16), cited in LCDC, 642 P.2d at 1165.

95. Id. (quoting OR. REV. STAT. § 215.515 (1993) (repealed 1977 Or. Laws § 766-16)). Responding to this latter mandate, the Oregon Land Conservation and Development Commission drafted Planning Goal 14, which called upon all municipalities and incorporated communities to establish "urban growth boundaries," designed in part to promote the "[m]aximum efficiency of land uses within and on the fringe of the existing urban area" taking "environmental, energy, economic and social consequences" into account. Urban growth boundaries, under Planning Goal 14, were to take the following factors into account:

(1) Demonstrated need to accommodate long-range urban population growth requirements consistent with … [other Land Conservation and Development Commission] goals;

(2) Need for housing, employment opportunities, and livability;

(3) Orderly and economic provision for public facilities and services;

(4) Maximum efficiency of land uses within and on the fringe of the existing urban area;

(5) Environmental, energy, economic and social consequences;

(6) Retention of agricultural land … [and]

(7) Compatibility of the proposed urban uses with nearby agricultural activities.

Planning Goal 14, quoted in LCDC, 642 P.2d at 1160-61. The application of these criteria is discussed at length in this decision, in which the Supreme Court of Oregon ruled invalid an attempt by the Land Conservation and Development Commission to amend the original language of this Planning Goal in a manner that, in the court's view, would have made "all land within city limits available for urban development without regard to the use and nature of the land," id. at 1164, and without regard to other important planning goals addressing such declared priorities as preservation of agricultural land (Planning Goal 3) and protection of estuarine resources (Planning Goal 16). Id. at 1161-62.

96. Id. at 1160 (quoting OR. ADMIN. R. 660-15-000, Definitions).

97. A further example of statewide development planning can be found in Florida's "Development of Regional Impact" process, established under the Florida Environmental Land and Water Management Act of 1972, FLA. STAT. ANN. §§ 380.012 et seq. (West 1988 & Supp. 1994). A careful review of the procedures established under Florida's law appears in Alfred Lloyd Frith, Florida's Development of Regional Impact Process, Practice, and Procedure, 1 J. LAND USE & ENVTL. L. 71 (1985). See also Jonathan M. Davidson, Plan-Based Land Development and Infrastructure Controls: New Directives for Growth Management, 2 J. LAND USE & ENVTL. L. 151 (1986). For a survey of efforts to regulate subdivision development in Florida, Maine, and Vermont, see Thomas R. McKeon, State Regulation of Subdivisions: Defining the Boundary Between State and Local Land Use Jurisdiction in Vermont, Maine, and Florida, 19 ENVTL. AFF. 385 (1991).

98. 1000 Friends of Oregon v. Wasco County Court, 703 P.2d 207, 212 (Or. 1985); 1000 Friends of Oregon v. LCDC, 642 P.2d at 1164.

99. LCDC, 642 P.2d at 1164 (emphasis added). See also Wasco County Court, 703 P.2d at 212.

100. OR. REV. STAT. § 197.005 (1993), quoted in LCDC, 642 P.2d at 1164.

101. The regulations are part of "an integrated hierarchy of legally binding goals, plans, and regulations." Dolan v. City of Tigard, 24 ELR 21083 (U.S. June 24, 1994).

102. Id.

103. The plan provided that new development must facilitate the pathway if the site is located on a street with designated bicycle pathways or is adjacent to a designated greenway. See id. at 21083 n.1.

104. Dolan v. City of Tigard, 854 P.2d 437, 24 ELR 20151 (Or. 1993), rev'd, 24 ELR 21083 (U.S. June 24, 1994).

105. Dolan, 24 ELR at 21085.

106. Id.

107. Id. at 21086.

108. Id. (citations omitted).

109. Id. at 21087. The Court endorsed a test used by the majority of state courts to evaluate exactions -- the "reasonable relationship" test -- and noted that the more stringent "specifically and uniquely attributable test" developed by Illinois and used by several other states would also meet the constitutional standard. It rejected only the looser tests used by Montana and New York. Id. at 21086-87.

110. Id. at 21087.

111. Id. at 21087-88.

112. Id. at 21088. Justice Stevens, writing for himself, Justice Blackmun, and Justice Ginsburg, dissented. After criticizing the Court's new two-step analysis and the "rough proportionality" standard, Justice Stevens argued that the Court should have upheld the exactions. Because the petitioner failed to "demonstrate that the dedication … would be any more onerous than a simple prohibition against any development on that portion of her property," which the majority said was proper, she cannot claim that she has been injured. Id. at 21091 (Stevens, J., dissenting). Justice Stevens also argued that the majority's rejection of the bicycle pathway attached too great a significance to the single word "could," as any prediction of the offset ("100 percent, 35 percent, or only 5 percent of the increase in automobile traffic") would suffice to sustain the condition. "If the Court proposes to have the federal judiciary micro-manage state decisions of this kind, it is indeed extending its welcome mat to a significant new class of litigants." Id. (Stevens, J., dissenting). Finally, he argued, shifting the burden of proof to the city is wrong, is contrary to constitutional practice, and resurrects discredited notions of substantive due process. Justice Souter, dissenting, argued that the new two-step analysis was unnecessary because Nollan v. California Coastal Comm'n, 483 U.S. 825, 17 ELR 20918 (1987), provided all the necessary guidance. He would have found that the city met the test with respect to both the floodplain/greenway and the bicycle path. 24 ELR at 21093 (Souter, J., dissenting).

113. The Court reversed and remanded "for further proceedings consistent with this opinion." Dolan, 24 ELR at 21088.

114. According to a report prepared by the Congressional Research Service in 1973, over 120 land use-related bills were introduced in the 91st Congress (1969-1970). In the 92d Congress (1971-1972), over 200 land use-related bills were introduced and the Coastal Zone Management Act was signed into law, 16 U.S.C. §§ 1451-1464, ELR STAT. CZMA §§ 302-318. As of March 10, 1973, only several weeks into the 93d Congress, over 50 such bills had been introduced. COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, U.S. SENATE, NATIONAL LAND USE POLICY LEGISLATION, 93d CONGRESS: AN ANALYSIS OF LEGISLATIVE PROPOSALS AND STATE LAWS 3 (1973) [hereinafter SENATE REPORT (1973)]. See also COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, U.S. SENATE, NATIONAL LAND USE POLICY: BACKGROUND PAPERS ON PAST AND PENDING LEGISLATION AND THE ROLES OF THE EXECUTIVE BRANCH, CONGRESS, AND THE STATES IN LAND USE POLICY AND PLANNING (1972) [hereinafter SENATE REPORT (1972)]; COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, U.S. HOUSE OF REPRESENTATIVES, REP. NO. 92-1306, NATIONAL LAND POLICY, PLANNING, AND MANAGEMENT ACT OF 1972 (1972).

115. SENATE REPORT (1972), supra note 114, at 29.

116. During this period of burgeoning environmental awareness, there appeared to be strong, bipartisan support for the advancement of a national land-use policy targeted primarily at enhancing state-level planning capabilities. President Richard Nixon, in his 1972 environmental address to Congress, observed:

A new maturity is giving rise to a land ethic which recognizes that improper land use affects the public interest and limits the choices that we and our descendants will have.… We must create the administrative and regulatory mechanisms necessary to assure wise land use and to stop haphazard, wasteful, or environmentally damaging development. Some States are moving ahead on their own to develop stronger land use institutions and controls. Federal programs can and should reinforce this encouraging trend.

President Richard Nixon, environmental address to Congress (1972), quoted in SENATE REPORT (1973), supra note 114, at 5.

117. On September 19, 1972, the Senate approved the Jackson Bill, S. 632, with several amendments, by a vote of 60 to 18. A similar bill was reported by the House Interior Committee, H.R. 7211, but was held by the Rules Committee for the duration of the 92d Congress. SENATE REPORT (1973), supra note 114, at 5-6. Only the Coastal Zone Management Act emerged successfully from both chambers of Congress and was signed into law by the President on October 27, 1972. 16 U.S.C. §§ 1451-1464, ELR STAT. CZMA §§ 302-318.

118. 16 U.S.C. § 1456, ELR STAT. CZMA § 307. Subsequent legislation involving public lands and resources included some standards with concepts similar to sustainability. For example, the 1976 National Forest Management Act mandates that the U.S. Forest Service limit timber harvest to the quantity that can be removed annually in perpetuity on a sustained yield basis. 16 U.S.C. § 1611(a), ELR STAT. NFMA § 13(a); see CELIA CAMPBELL-MOHN ET AL., SUSTAINABLE ENVIRONMENTAL LAW 160, § 4.1(E)(3) (1993). Similarly, under the Marine Mammal Protection Act, Congress directed that marine mammal populations not be permitted to drop below their optimum sustainable population, and that fish management plans must provide for continued optimum yield. 16 U.S.C. § 1361(2), ELR STAT. MMPA § 2(2); 16 U.S.C. § 1801(b)(4).

119. Among the laws developed pursuant to the CZMA was South Carolina's Beachfront Management Act, S.C. CODE ANN. §§ 48-39-290 et seq. (Law. Co-op. Supp. 1993). In a companion case to Lucas v. South Carolina Coastal Council, supra note 51, the U.S. Supreme Court declined to review a Fourth Circuit decision rejecting a takings challenge to the facial validity of the Beachfront Management Act. Esposito v. South Carolina Coastal Council, 939 F.2d 165, 21 ELR 21249 (4th Cir. 1991), cert. denied, 112 S. Ct. 3027 (1992).

120. The Canadian Environmental Assessment Research Council has identified eight types of cumulative environmental effects: (1) time crowding -- frequent and repetitive impacts on a single environmental medium; (2) space crowding -- high density of impacts; (3) compounding effects; (4) time lags -- e.g., carcinogenic effects of multiple sources; (5) extended boundaries -- impacts occurring far from the source; (6) triggers and thresholds -- disruptions to ecological processes that alter the system's behavior; (7) indirect effects -- secondary effects such as development resulting from road construction; and (8) patchiness effects -- e.g., fragmentation resulting from numerous small impacts. CANADIAN ENVIRONMENTAL ASSESSMENT RESEARCH COUNCIL, THE ASSESSMENT OF CUMULATIVE EFFECTS: A RESEARCH PROSPECTUS (1988).

121. 40 C.F.R. §§ 1508.7, 1508.25(a), 1508.25(c) (1992). "Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7.

122. Nuisance doctrine, extending back to its roots in English jurisprudence, has commonly endowed the state with authority to safeguard resources vital to our well-being, notably including the quality of the air we breathe, the vitality of the soil on which we depend for food production, and the potability of water essential to our survival. For these protections to have operational significance in an era of mounting pollution and heightened resource interdependence, it is incumbent upon our courts and legislatures to determine the acceptable bounds of private property uses by weighing their aggregated as well as their individual, localized impacts.

123. See, e.g., Sierra Club v. Penfold, 664 F. Supp. 1299, 17 ELR 21254 (D. Alaska 1987), aff'd, 857 F.2d 1307, 19 ELR 20207 (9th Cir. 1988) (requiring government to prepare an environmental impact statement on the cumulative impact of mining claims on a wild and scenic river). "[I]f ever there was a paradigm instance of 'cumulative' or 'synergistic' impacts, it is this case. Dozens of small operations of a single type incrementally contribute to deterioration of water quality in a common drainage stream." 664 F. Supp. at 1303, 17 ELR at 21062 (citations omitted).

124. The discharge of toxic pollutants from multiple sources can poison shared watersheds; sulfur dioxide emissions from industrial and residential fuel combustion can destroy downwind forest ecosystems; low-density suburban sprawl can severely deteriorate regional air quality; and unrestrained coastal development can devastate fish spawning grounds and related marine habitats. State and federal environmental laws address many of these aggregated environmental harms by setting standards for ambient air and water quality, and by imposing discharge standards on a variety of polluting industries, commercial establishments, and mobile pollution sources.

125. See supra note 99 and accompanying text.

126. 593 A.2d 251, 22 ELR 20155 (N.J. 1991).

127. Gardner v. New Jersey Pinelands Comm'n, 593 A.2d at 254, 22 ELR at 20157 (citations omitted) (quoting Senate Energy and Environment Committee Statement, N.J. STAT. ANN. § 13:18A-1 (West)).

128. Gardner, 593 A.2d at 254, 22 ELR at 20157.

129. Id. at 259, 22 ELR at 20160.

130. Id. at 258, 22 ELR at 20159 (quoting Orleans Builders & Developers v. Byrne, 453 A.2d 200, 206 (N.J. Super. Ct. App. Div. 1982)).

131. 89 Cal. Rptr. 897, 3 ELR 20446 (Cal. Ct. App. 1970).

132. Candlestick Properties v. San Francisco Bay Conservation & Dev. Comm'n, 89 Cal. Rptr. at 905, 3 ELR at 20450.

133. Candlestick Properties, 89 Cal. Rptr. at 901, 3 ELR at 20448.

134. Id. at 901, 3 ELR at 20447 (quoting CAL. GOV'T CODE § 66601 (Deering 1989)).

135. Even more detailed in its observations about the vulnerability of wetlands ecology in a particular setting is the Maryland Court of Appeals' ruling in Potomac Sand & Gravel v. Mandel, 293 A.2d 241, 243-44, 2 ELR 20466, 20102-03 (Md. 1972) (upholding state statute barring dredging of tidal waters and marshlands as a reasonable exercise of police power); see also Claridge v. New Hampshire Wetlands Board, 485 A.2d 287, 292 (N.H. 1984) (favorably summarizing master's finding that proposed filling of marshland would have "irreparably diminished the marsh's nutrient producing capability for coastal habitats and marine fisheries").

136. Indeed, the majority implicitly approved the open space requirement and prohibition on development within the floodplain. Dolan v. City of Tigard, 24 ELR 21083, 21086-88 (U.S. June 24, 1994).

137. The U.S. Supreme Court has noted that, at least in cases involving the loss of all economic value, the government must "do more than proffer the legislature's declaration that the uses [plaintiff] desires are inconsistent with the public interest, or the conclusory assertion that they violate a common law maxim such as sic utere tuo ut alienum non laedas." Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2900, 22 ELR 21104, 21111 (1992).

138. Among those potentially afflicted by environmental or ecological injuries are: Future users of contaminated surface water or contaminated aquifers; the future offspring of persons exposed to teratogens; and communities dependent upon exhausted fish stocks, disease-infested forests, or topsoil-depleted farmland and rangeland. Adverse long-term impacts may, in many cases, be graver than injuries suffered by persons immediately affected by the land use in question. An estuary, once dead, may be impossible to restore. A species, once exterminated, may be impossible to replicate and its genetic secrets may be lost to human use and benefit for all time. Moreover, even long-term problems -- such as acid forming mine waste piles -- that may be remediable in theory, can be prohibitively expensive to address once they are created.

139. See supra notes 41-43, 54 and accompanying text.

140. Lucas, 112 S. Ct. at 2922, 22 ELR at 21121.

Arresting the development of the common law is not only a departure from our prior decisions; it is also profoundly unwise. The human condition is one of constant learning and evolution -- both moral and practical. Legislatures implement that new learning; in doing so they must often revise the definition of property and rights of property owners. Thus, when the Nation came to understand that slavery was morally wrong and mandated emancipation of all slaves, it, in effect, redefined "property." On a lesser scale, our ongoing self-education produces similar changes in the rights of property owners: New appreciation of the significance of endangered species, the importance of wetlands, and the vulnerability of coastal lands shapes our evolving understandings of property rights.

Id. at 2921-22, 22 ELR at 21121.

141. Candlestick Properties v. San Francisco Bay Conservation & Dev. Comm'n, 89 Cal. Rptr. 897, 3 ELR 20446 (Cal. Ct. App. 1970).

142. CAL. GOV'T CODE § 66601 (Deering 1989), quoted in id. at 901, 3 ELR at 20447.

143. 414 A.2d 280 (N.J. Super. Ct. Law Div. 1980).

144. Id. at 289.

145. ILL. CONST. art. XI, § 1. Intergenerational concerns also figured prominently in proposed new language to the Florida Constitution, advocated by organizers of the state's "Clean-Up '84" petition drive. See Robert T. Mann & Richard Jackson, Environmental Protection Through Constitutional Amendment, 1 J. LAND USE & ENVTL. L. 385 (1985). The proposed language declared in relevant part: "Each person has a right to a healthful environment and a duty to provide and to maintain a healthful environment for the benefit of this and future generations." Id. at 387 (quoting proposed FLA. CONST. § 24(a)). In an attempt to broaden the traditionally defined scope of Florida's public trust doctrine, the proposed new section also stated that "[t]he waters, air and wildlife in the state are public resources that shall be managed as a public trust for the use and benefit of all the people of this and future generations and for the maintenance of the natural ecosystems." Id. at 387 (quoting proposed FLA. CONST. § 24(b)). The petition drive failed to receive the number of signatures needed to place the proposed amendment on the 1984 ballot. Id. at 387 n.12.

146. PA. CONST. art. 1, § 27.

147. 42 U.S.C. § 4331(b), ELR STAT. NEPA § 101(b).

148. See, e.g., 16 U.S.C. §§ 4331(b)(3)-(4), ELR STAT. NEPA §§ 101(b)(3)-(4).

149. See also National Park Service Organic Act, 16 U.S.C. § 1. This Act requires that the national parks be managed "to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." Id. (emphasis added). See also the Wilderness Act, which was enacted "to secure for present and future generations the benefits of an enduring resource of wilderness." 16 U.S.C. § 1131(a), ELR STAT. WA § 2(a).

150. 42 U.S.C. §§ 10131 et seq.

151. H.R. REP. No. 218, 95th Cong., 1st Sess. 93 (1977), reprinted in 1977 U.S.C.C.A.N. 629.

152. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18. Such species are declared to be "of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." 16 U.S.C. § 1531(a)(3), ELR STAT. ESA § 2(a)(3).

153. 42 U.S.C. § 9607(f), ELR STAT. CERCLA § 107(f).

154. "Sums recovered by the United States government as trustee under this subsection shall be retained by the trustee, without further appropriation, for use only to restore, replace, or acquire the equivalent of such natural resources." Id. The same requirements apply to state trustees. Id.

155. 24 ELR 21078 (Fla. Mar. 31, 1994).

156. Davey Compressor Co. v. City of Delray Beach, 24 ELR at 21078. See also Arizona's groundwater protection program, which classifies all aquifers as "drinking water" for protection standards, and allows a lesser standard only if the aquifer is hydrologically isolated, is not being used for drinking water, and "the short-term and long-term benefits to the public that would result from the degradation of the quality in the identified aquifer … would significantly outweigh the short-term and long-term costs to the public of such degradation." ARIZ. REV. STAT. ANN. § 49-224.C (1988).

157. United Nations Framework Convention on Climate Change, June 4, 1992, 31 I.L.M. 849, ELR STAT. TREATIES 50343 (entered into force Mar. 21, 1994). The United States is a signatory to this Convention.

158. United Nations Framework Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818 (entered into force Dec. 29, 1993). The United States is a signatory to this Convention.

159. Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874.