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its outdated notion of private property, a UI professor of environmental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.
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