by Eric Zencey
Infinite-Planet Thinking is deeply embedded in our political economy. It’s there in the expectation that investments will pay off at a continually compounding rate. It’s there in the unquestioned consensus among elected officials that economic growth is always good–that it can’t possibly ever be uneconomic growth, costing us more in lost natural and social capital than we gain from additional consumption. It’s there in expressions of concern that some key indicator–housing purchases or starts, car sales, or purchases of other durables–has failed to rise from year to year or quarter to quarter. In a steady state, sustainable economy suited to the planet we actually inhabit, indicators like those wouldn’t rise continually. (Most would fall considerably before leveling off, because policy would promote durability and repairability, and manufacturers would be given incentives to use modular construction that would allow regular updating of only those components that need it.) Automobile sales would decline steadily, because a sustainable civilization would invest in mass transit and rapid inter-city rail, turning the private automobile into a major expense that most of us would willingly do without.
One less-obvious place that infinite planet thinking clashes with reality is in American Constitutional law, particularly the case law that has amplified one particular clause of the Fifth Amendment: the clause that forbids government from taking private property for public use without “just compensation.”
The harms that the Fifth Amendment’s Takings Clause was intended to prevent were familiar to American colonists, as Britain had forced them to bear the costs of war (French and Indian, the Revolution itself) by quartering troops in private homes and by seizing without payment horses, wagons, farm produce, and silage. For a century and a half after the ratification of the Constitution, the Takings Clause was construed to apply only to that kind of physical invasion of property or a taking of title. Thus, in 1915, when the City of Los Angeles expanded its boundaries and enclosed an existing brickyard that was then held to be in violation of nuisance laws and attendant zoning regulations, no compensation was due to the owner whose operations had been summarily shut down (Hadachek v. Sebastian). No physical encroachment, no loss of title, no taking.
That interpretation was overturned in 1922, in Pennsylvania Coal v. Mahon, in which the Supreme Court held that a regulatory change could constitute a taking if the regulations go “too far” in limiting uses of the property.
How far is too far?
The court had difficulty saying. Over time, one sturdy guide emerged: following its decisions in Penn Central Transportation Co. v. New York City (1978) and Kaiser Aetna v. United States (1979), and using language first proposed in a 1967 law review article, the court is most likely to find that a regulatory taking has occurred if a property owner has reasonable, investment-backed expectations to develop the property in ways that new regulation forbids, and no other avenue of development or use is likely to provide a similar return.
A full-scale review and critique of Takings case law from a steady state, finite planet perspective would be useful, but no scholar has yet done such thing. Among the trends visible in Takings case law is this one: in a crowded world that lacks ecological resilience, some acts that would otherwise pass for private become decidedly public in their character and consequence. Thus, a person who plants ornamental cedar trees can see them condemned as public nuisances, and cut without compensation, if they carry a form of tree disease fatal to nearby apple orchards (Miller v. Schoene, 1928). A property owner who wants to fill in a wetland to build a house finds that he can’t–and that he should have known that when he bought the property (Claridge v. New Hampshire Wetlands Board, 1984). Whether a man can build houses on land he owns becomes a matter of public interest if the land happens to be environmentally sensitive barrier island, newly protected by coastal zoning laws (Lucas v. South Carolina Coastal Council, 1992). And whether the owner of an auto parts store can expand her building is not simply a private decision if the addition would encroach on greenspace the town plan identifies as both a future bikeway and an environmentally useful drainage swale (Dolan v. City of Tigard, 1994).
The problem: under current interpretations of the Takings Clause, ecologically wise decisions about wetlands, barrier islands, and drainage swales require financial compensation to landowners affected by them, making preservation of ecosystem services prohibitively expensive. In Lucas and Dolan, the public was required to compensate the landowner at market prices for preventing the socially undesirable construction. A spate of hurricanes has shown how valuable barrier-island ecosystem services can be. If the public has to buy those services back, parcel by parcel, at market prices, suffering the billion-dollar property losses brought by storms begins to look like the least-cost option.
This perverse situation follows logically from the infinite-planet assumptions that lie behind our Anglo-Saxon tradition of property law. An infinite planet has ecosystem services galore–so much that loss of services from any single ecosystem leaves “enough, and as good” remaining. The words are English philosopher John Locke’s, who held that individuals have a right to take from the commons only if their taking meets this proviso. But Locke went on to argue that once money is invented, private appropriation for sale to others leads to economic growth, which can go on forever, releasing us from this limit. “He, that incloses Land and has a greater plenty of the conveniencys of life from ten acres, than he could have from an hundred left to Nature, may truly be said, to give ninety acres to Mankind.”
Locke is all too obviously an infinite planet thinker. Our property law, built on his precepts, finds that a taking occurs when public authority preserves environmental values from private development. We need to reset the Fifth Amendment’s default and run it the other way, to hold that a taking occurs when property owners deprive their fellow citizens of ecosystem services. Anyone who proposes to develop a plot of land should be required to show that the loss of ecosystem services to the public will be insignificant–that the proposed act meets Locke’s original criterion. If it doesn’t, the property owner should be required to pay the cost of mitigation, or of ecosystem restoration elsewhere, or of providing equivalent services from built capital.
Unfortunately, this is just the line of development the Roberts court foreclosed in its 2013 decision in Koontz v. St. Johns River Water Management District, the latest in the Court’s infinite-planet Takings tradition. (As Donella Meadows once wryly noted, if you want to know where the leverage points are in a complex system, look for where the system’s power is pushing hard in exactly the wrong direction.)
If no equivalent mitigation or replacement is possible, and if there is a reasonable, science-backed expectation that loss of those particular ecosystem services would diminish human wellbeing, then the public has legitimate authority to prevent the destruction of those services without providing compensation. To argue differently is to argue that title to property conveys the right to hold civilization hostage. It’s to argue that if the public wants to secure the blessings of ecosystems to future generations, they’ll have to pony up and buy their children’s future from private owners, parcel by parcel, at current market rates.
That’s not only unrealistic and intergenerationally unjust, it risks the loss of civilization in order to protect the property interests of individuals within that civilization. That’s a very odd thing to do.
Next: three paths forward.