Adjusting the Fifth to a Finite Planet, Part II
Editor’s Note: This is the second piece of a two-part post. You can read Part 1 here.
Among the avenues by which Takings case law could be adapted to the reality of a finite planet are these three:
One: Change the default by changing the definition of what constitutes a reasonable investment expectation. It is no longer reasonable for an individual to expect to profit from using property in ways that would destroy or diminish the property’s ability to provide ecosystem services to the public at large. Instead of the general public having to pay property owners the going market rate for land burdened by regulation–a rate that reflects the most intensive economic use of the land that can be imagined by infinite-growth-believing, financial-risk-taking optimists–land owners would have to compensate the general public when their acts diminish the flow of ecosystems services.
Two: Change the default by promulgating the notion of an ecological servitude. All property that abuts navigable waters in the U.S. is held under a navigational servitude: the public’s interest in maintaining navigable waters trumps the interests of waterfront property owners. As Justice Jackson put it in United States v. Willow River Power Co., “Rights, property or otherwise, which are absolute against all the world are certainly rare, and water rights are not among them.” Given the legitimate authority of government to pursue the public interest in establishing and maintaining navigable waters, he said, “private interest [in the disposition of waterfront property] must give way to a superior right, or perhaps it would be more accurate to say that, as against [the public interest represented through] the Government, such private interest is not a right at all.”
…click on the above link to read the rest of the article…
