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Adjusting the Fifth to a Finite Planet, Part II

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by Eric Zencey

Editor’s Note: This is the second piece of a two-part post. You can read Part 1 here.

Eric ZenceyAmong 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.”

Under current interpretations of the servitude, when public authority exercises its power over navigation in ways that affect the interests of property owners, the public may not be required to pay compensation under the Takings Clause. Land abutting navigable waters has always been subject to this servitude, so the exercise of it does not necessarily constitute a taking or an unforeseeable loss for the property owner.

The notion of an ecological servitude would be constructed by analogy: the paramount interest the public has in maintaining the ecosystems on which civilization depends would supersede whatever particular interests individuals hold in parcels of property. Just as allowing uncontested trespass for a number of years establishes a presumptive public right of way, the public’s enjoyment of ecosystem services has long since established a presumptive right to the continued enjoyment of them. An ecological servitude would acknowledge this. A few cases decided on this ground would give undeniable constructive notice to property owners–a notice already implicit in legislation like the Endangered Species Act and the Clean Water Act–that the bundle of rights conveyed to them by title is subject to this limitation.

“Ecological servitude” is not yet a common phrase in legal circles. This should change as various strands of thought and action cohere around the concept, and as scholars discover that it is implicit in much common law and environmental legislation. A variety of groups and organizations (including the state of Louisiana) talk of conservation easements producing, in sum, a conservation servitude on particular parcels of land. An NGO in Costa Rica allows that it created the first ecological servitude in Central America in 1992.

Wetlands - Lisa Jacobs

Preserving the ecosystems that support civilization should not be financially prohibitive. Photo Credit: Lisa Jacobs

Three: Acknowledge that value in land is created as an externality of decisions made by others, and compensate accordingly. Under this approach, an environmental regulation might still offer grounds for a Takings claim, but the notion of what amounts to “just compensation” would be radically altered. Take the case that led the Court to decide that a demand for off-site compensatory restoration constitutes a taking. Developer Coy Koontz owned 15 acres near Orlando, mostly wetlands, and sought a permit to develop the land by filling some of it. He objected to the permit condition that he must pay for compensatory wetlands restoration elsewhere, refused the permit and brought suit. In a remarkable extension of Takings law, the court decided by a narrow majority that Koontz had suffered a taking even though wetlands filling permits are not granted automatically and even though he had not in fact had any property or money taken from him. What the St. Johns River Water Management District proposed to take from him was nothing more substantial than his expectation of getting a larger profit than he could get if he had to pay for mitigation. But why, exactly, could he expect any profit at all for developing and then selling his land? In central Florida as elsewhere, land values are mostly the result of decisions made by others–population growth and in-migration into the area, construction of nearby infrastructure including roads and schools and water service, and proximity to cultural developments that make the area an attractive place to live for some people. These are all decisions in which Koontz had no, or only a very minor, role. If much of the value of a piece of property is not a result of the owner’s efforts, but is a social creation, why should a private owner be compensated when part of that socially created value is retrieved by the public through regulation in pursuit of a legitimate public interest?

Credit Herman Daly and Joshua Farley with asking the question in their introductory Ecological Economics textbook: “Are individuals entitled to wealth created by society . . . or should this wealth belong to society as a whole?” A reasonable answer to that question would have the effect of diminishing considerably what constitutes “just compensation” under the Takings clause–a result that makes ecosystem-preserving public action less expensive, and thereby puts the continuation of civilization within easier reach of a public treasury that will become increasingly straitened as the era of high-EROI fossil fuel comes to an end.

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No matter what we do we’ll eventually have an ecologically sustainable civilization with a steady state economy, one that’s in dynamic balance with its host ecosystems. That’s because by definition an unsustainable system doesn’t last. We can make the transition haphazardly, through crisis, catastrophe, and collapse, at much cost in human pain and suffering, or we can anticipate the necessary changes and give ourselves a better, less brutal path forward. To find that path we’ll have to identify and correct infinite-planet suppositions wherever they are embedded in our system. Fifth Amendment Takings case law is one such place. Preserving the ecosystems that support civilization should not be financially prohibitive. Current Takings law says it should, and that’s why it needs to change.

The Role of Cities in Moving Toward a Sustainable Economy

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by Brent Blackwelder

The story of a hippy flower-child who leveraged big economic decisions that ushered in renewable energy and sensible land-use for Austin and the State of Texas.

BlackwelderI encounter many young adults who are discouraged by America’s failure to respond to big issues affecting the future of Planet Earth and human civilization. They do not see much opportunity to make major changes, especially at the governmental level. But empowering examples can illustrate how significant changes can be made in governance at many levels. Cities can and have provided some model changes, but we will never get to a sustainable, steady state, true-cost economy when major energy and land-use decisions continue to take us in the opposite direction.

Cities like Seattle, San Francisco, Portland (Oregon), and Chicago have led the way with enlightened environmental and economic policies. In Washington, DC, I served on Mayor Gray’s “green ribbon” panel to help fashion a comprehensive green plan for the nation’s capital.

This post focuses, however, on a lesser known city, Austin, Texas, that made big economic decisions that changed the dynamics in energy, transportation, land-use, and self-reliance.

The post is about what a hippy flower-child was able to do in Austin by getting elected to the city council. Max Nofziger left his family’s farm in northwest Ohio over 40 years ago and went to live in Austin. He was a hippy and initially made his living selling flowers on street corners, but managed to get elected to the city council and his persistence and rationality helped lead the way for some significant changes.

Working at first with the leaders and organizations in Austin who were advocating wind and solar power, Max began an improbable run in the 1980s for city council on an anti-nuclear, pro-solar platform with a “Run-for-the-Sun” campaign theme. Even though he lost four races–two for city council and two for mayor–he kept educating the public and used common sense logic when he spoke.

His popularity with the voters grew and he got 20% of the vote in his second run for Mayor. Recognizing Max’s growing support, the newly elected mayor appointed him to the advisory board for the local utility. Max helped in some basic clean energy efforts, such as defeating a lignite coal power plant proposal, getting solar panels placed over the 3-M Company’s parking lot, and helping close the antiquated and dirty gas plant in one of Austin’s poorer neighborhoods.

The key long-term action was to get Austin to build the first wind farm in Texas in 1994-5. The success of this city-owned facility helped convince the State legislature in the late 1990s to pass a five-year plan to incentivize wind power in Texas. Governor George Bush signed this legislation, which proved so successful that it was renewed for a second five-year period while Bush was President of the United States. Today, Texas is the number one state in wind power, with 12,755 megawatts installed and 7,000 currently under construction.

Max was influential in two big land-use decisions–the Austin International Airport and the Convention Center. He helped avert land-use idiocy and save hundreds of millions of tax dollars.

In the 1980s, there was widespread support for a new city airport to replace the half-century-old small airfield that abutted increasingly crowded neighborhoods. Voters approved a new site, but it was one that wealthy developer interests had purchased in anticipation of making big money.

Then a momentous global surprise occurred as the Berlin Wall came down. One immediate repercussion was that the Air Force decided its Bergstrom base in Austin was no longer needed. Max realized that Austin owned the land the Bergstrom airport was on and the city could now reclaim it. With the Air Force’s decision to close the base, the city could have use of the fully functional airfield with its 10,000-foot runway. This choice would save the city at least $500 million in land and runway construction costs.

The problem was that all the politicians had received contributions from the developer interests and were not about to change; however, Max was able to obtain a referendum on the siting choice and it won easily.

Austin-Bergstrom Airport - Shay Tressa DeSimone

More than a sensible land-use decision, the Austin-Bergstrom Airport reflects the city’s culture and commitment to local food and artists. Photo Credit: Shay Tressa DeSimone

Not content with a victory on the siting decision, Max led an effort to make sure the new airport terminal reflected Austin culture, featured local food, and provided facilities for local artists to perform. Despite initial opposition by agribusiness food lobbyists, the plan went ahead and continues to be a success. There have been over 7,000 music performances to date.

This example illustrates a significant reuse of perfectly good resources, as well as prevention of a waste of taxpayer money on developer enrichment schemes. Incorporating good architecture for the terminal and boosting the city economy with local food and performances by local musicians points to the importance of looking comprehensively at all the changes that are possible with major land-use decisions.

The second important land-use decision was on the siting of the Austin Convention Center. As a city council member, Max knew the developer lobby had “pre-selected” the place they wanted for the Center, and had greased the pockets of decision makers to ensure that it was selected, even though it was a poor site from the standpoint of requiring a lot of driving and creating congestion. Max proposed a sensible location that would help avoid traffic jams and unnecessary driving, and would be near the evening entertainment zone. Top architects were hired to design the facility and solar collectors were put on the roof, which had the additional advantage being visible to interstate auto traffic and educating the public on the efficacy of solar.

The energy and land-use decisions that Austin made enabled progress to occur toward a prosperous, sustainable economy. Had they gone in a different direction, there would be less hope for achieving a sustainable, steady state, true-cost economy.