(This is the third of four parts about resilient cities and adaptive law by guest columnist, Tony Arnold. Read part 1 and part 2 here.)

In a recent Environmental Law Reporter article, “Adaptive Law and Resilience,” resilience scientist Lance Gunderson and I have identified aspects of the U.S. legal system that are maladaptive to interconnected nonlinear change in social systems and ecosystems and offered an alternative view of an adaptive legal system.  This blog addresses three aspects of law that are relevant to cities and their resilience: local governance, private property rights, and adaptation.

The institution of private property is an aspect of both American culture and U.S. law that also affects the resilience of cities.  In a number of respects, legal protections of private property rights in the U.S. undermine the resilience and functioning of ecosystems by creating artificial boundaries for the management of lands, waters, and other ecosystem components, constraining government regulators from out-right prohibiting land uses that would harm ecosystems, and ossifying resource allocations and use entitlements that were granted long ago.  Even stronger than the law of private property rights is the culture of private property rights in the U.S., which serves as a political and psychological barrier to legislation, regulation, and permitting decisions that would protect both nature and people against individual landowner or developer actions.  Many a planning commission or city council has backed off of limiting development or land use after being accused of “taking” someone’s private property, even if legally the action would not have come even close to constituting a regulatory taking.  On the other hand, the U.S. institution of private property rights serves many beneficial social system functions, plus they are a strongly entrenched feature of U.S. governance and culture.  Private ownership of land and other resources can be a powerful tool to harness for environmentally responsible behavior and building public support for environmental policies and laws.  I believe in the value of private property in the U.S.

The problem, though, is rigidity and resistance to necessary change.  Property law must change if cities, ecosystems, and society are to be resilient to changing conditions.  One troubling aspect of our current legal system is a doctrine known as “judicial takings.”  In Stop the Beach Renourishment, a case involving coastal lands – places of extraordinary change where both cities and property law need to be particularly adaptive – six U.S. Supreme Court justices (one more than the 5 needed to form a majority) agreed that state courts do not have the authority to change property law doctrines that take away a private owner’s property and that federal courts can overturn state decisions about state law if those decisions deprived a pre-existing property right (i.e., “judicial takings”).  Fortunately, Justices Kennedy and Sotomayor, two of the six, would allow federal courts to overturn state courts only if the state court decision was arbitrary and capricious, a difficult standard for property owners to meet.  However, the Court gave too little attention to the fact that property law has necessarily changed over time as society has changed.  Likewise the Justices failed to recognize that tremendous ecological and social changes are affecting our cities and environments and will likely necessitate significant evolution in property rights in coming years.  I analyzed the case and its implications for coastal cities and ecosystems in an article entitled “Legal Castles in the Sand: The Evolution of Property Law, Culture, and Ecology in Coastal Lands.”

St. Augustine Beach, Florida, a place of continual beach erosion and “renourishment.”

Equally problematic are barriers to recognition of the large-scale systemic value (to an entire community, society, or nature) of discrete property interests or units.  For example, the laws of water rights in the western U.S. pose significant barriers to the transfer of long-existing water rights from low-value agricultural uses to higher-value urban, recreational, or ecological uses, including instream flows.  These obstacles have had some positive effects, such as forcing cities like Las Vegas and Los Angeles (actually the entire Southern California metroplex) to develop water conservation practices. The positive effects also include slowing the conversion of farmland to suburban sprawl and protecting the hydrology and culture of agricultural watersheds (“areas of origin”).  However, sustained drought, unpredictable climate change, the environmental problems of dewatered rivers and overpumped aquifers, and continued population growth in the West require us to find ways to move water away from growing alfalfa in the desert, for example, towards higher-value social and ecological uses.  Water law will need to change in order to facilitate these transfers.  Likewise, our legal system has few widespread effective tools for recognizing ecosystem services, which are the humanly valuable functions and services provided by ecosystems – society’s “natural capital.”  While some cities are now protecting watershed lands as cheaper ways of protecting municipal water supplies than building treatment plants or finding other sources of clean water – such as the City of Santa Fe’s innovative Municipal Watershed Management Plan that uses a “payment for ecosystem services” management strategy – we do very little to incentivize or protect pollinator-friendly fields and lawns, urban trees, distinctively rich soils, or even private forests that are under development pressures.  Resilient cities will be cities that have developed robust multi-tool ecosystem-services policies.

Arnold_blog_3Tony Arnold is the Boehl Chair in Property and Land Use, Professor of Law, Affiliated Professor of Urban Planning, and Chair of the Center for Land Use and Environmental Responsibility, University of Louisville. He has recently been named the Associate Dean for Research and Faculty Development at the University of Louisville’s Brandeis School of Law. He has served as a planning commissioner, member of a task force addressing environmental justice in urban neighborhoods, a land conservation trust board member, and co-chair of the land use, transportation, and urban forestry committee of the Louisville Metropolitan Climate Change Task Force. Here he is pictured with two former law and urban planning students, looking at urban tree canopy planning documents, along the Louisville Loop Trail, a 100-mile trail system that rings the entire city, linking existing and new parks, civic facilities, diverse neighborhoods, and waterways. He can be reached at tony.arnold@louisville.edu.