Working Paper No. 12-80:
A Prospective Look at Property Rights and Environmental Regulation

Author(s):

Steven Eagle

Date Posted: December 2012

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Abstract:

This Article considers the future interaction of environmental regulation and private property rights, with an emphasis on climate change issues. It concludes that environmental issues not satisfactorily resolved at the federal level will lead to more state and local regulation that impinges on traditional understandings of property. Given the uncertainty associated with detrimental environmental outcomes, and the trend towards more proactive sub-national land use controls, more micromanagement of property will result. Since many environmental issues, notably climate change, are trans-national or worldwide in effect, suboptimal results might be expected. Furthermore, increased sub-national efforts to regulate the environment will clash with private property rights. Inevitably, some ostensible environmental regulations will seek to further other public and private agendas.

Part I examines the difficulty in defining “environment” and “property rights,” especially in the context of future generations. Part II focuses on the importance of private property in future environmental regulation, and examines the lack of standards protecting individuals from regulatory takings, and negative impacts for consumers. Part III considers the problematic implementation of “smart growth” regulations, the use of development exactions, and the potential for rent seeking and abuse in the redevelopment context.