By Shannon Vicic
If the natural environment is to be kept healthy, society must redefine its outdated notion of private property, a UI professor of environmental law says.
Current property law allows individual landowners to use their land without regard to the long-term health of the environment, UI law professor Eric Freyfogle said. For example, farmers may plow to the edge of waterways, causing soil erosion, or use toxic pesticides that run off into waterways. Owners of forest areas may use harvesting and land-management techniques that reduce significantly the diversity of native plants and animals.
"Too much of property law remains in the frontier era, back when land and resources seemed to spread forth without limits before the engines of science and industry came up with unheralded ways to move, shape and destroy the land -- and everything that lives on it," Freyfogle wrote in an article that appeared recently in the UI Law Review.
Landowners, particularly rural landowners, should be legally responsible for doing their part to help sustain and preserve the indigenous plants, wildlife and waterways on their land, Freyfogle said. "What I'm advocating is a new ecological understanding of land ownership that obligates owners to use their land in a way that doesn't harm the natural community."
In recent court cases concerning land use within fragile ecosystems, the U.S. Supreme Court has ruled in favor of property owners, signaling a desire to protect private-property rights. But the judges may not have understood the full range of disruptive effects that can stem from ecologically harmful land uses, Freyfogle said. The harm caused by such abuses as using toxic pesticides or diverting waterways may be subtle and long-term, rather than immediate.
"Today's paramount need, without question, is ecological education, helping landowners see the harms they cause, helping legislatures and judges see how one land parcel is inevitably linked to the next and how the ripples of a given land use can spread far and wide."
The concept of ownership also should be redefined to reflect society's growing awareness of how land development may harm the natural community. "A land-use ethic can arise only within a culture that comes to see the loss of biodiversity as a communal harm and that comes to criticize the landowner who helps bring on such a loss," the law professor said.
Already, laws prohibiting the draining of wetlands and the alteration of endangered species' habitats have helped create a new understanding of what constitutes harm to the environment. In the years ahead, the list of land uses that constitute environmental harms must continue to expand, creating a new role for private landowners in sustaining the health of the ecosystem, Freyfogle said.
Freyfogle is scheduled to speak next month at a conference on property rights and environmental issues to be held at Yale University.