The Land Use - Environmental Law Distinction: A Geo-Feminist Critique

By Spyke, Nancy Perkins | Duke Environmental Law & Policy Forum, Fall 2002 | Go to article overview
Save to active project

The Land Use - Environmental Law Distinction: A Geo-Feminist Critique

Spyke, Nancy Perkins, Duke Environmental Law & Policy Forum

   The ability of thought to transcend the circumstances in which it 
   finds itself, its urge to create "other worlds," is surely one 
   source of our present environmental problems. It is also the 
   wellspring of a hope that we might overcome such problems. (1) 

To the vast majority of lawyers the areas of land use planning and environmental regulation are distinct. The subjects are treated in separate courses in law schools, zoning ordinances differ from environmental laws, and professionals are identified as land use planners or environmental consultants. The distinction between land use and environmental regulation is also relevant in case law. It can be crucial in preemption cases and can also arise in sovereign immunity, intervention and standing disputes. Additionally, the distinction has surfaced in Chevron determinations and, in a subtle yet important way, it plays a role in regulatory takings cases.

Yet the persistent application of the distinction is both artificial and antiquated, impeding efforts to improve ecological well-being. History admittedly offers a partial explanation for the distinction, but that alone provides scant reason to accept it with a precedential nod. This is especially true today, when the dichotomy is being questioned and blurred in numerous ways. Instead, what is called for is a searching and critical examination.

Undoubtedly, there are many ways to analyze the distinction between land use and environmental regulation. Critiques based on feminism and geography offer two meaningful approaches. A feminist critique suggests that the distinction is an outgrowth of the male-female dualism that plagues western thought. Once characterized in this manner, the dichotomy can be shown to result in abstraction, homogenization and the domination of nature. To the extent the distinction severs decision-making from local ecological conditions, it can also be criticized from a geographic perspective. A geographic critique is also useful since the distinction often severs decision-making processes from local ecological conditions that are experienced by nearby residents. A geo-feminist critique integrates these two arguments into a more comprehensive attack against the abstract dualism that troubles the distinction.

Eliminating the distinction will not leave judges, legislators, environmental attorneys and land use planners adrift. Instead, their decision-making can be enlightened by an awareness that land use choices inevitably impact the environment and that significant local input ensures that environmentally sustainable choices are made. A decision-making paradigm based on sustainable environmental planning in the context of a particular land use scheme would merge issues traditionally associated with land use and environmental regulation and would respond favorably to the geo-feminist critique of the status quo.

This thesis could certainly be labeled radical, and as such is one that critics may summarily dismiss. (2) However, this article's critique is only one of many ways to challenge a distinction that is already dissolving. The geo-feminist critique raises property rights concerns as well, and for that reason a strong thread of property theory is woven throughout this article. Ultimately, the contextualized, integrative alternative approach to land use and environmental regulation which is suggested here reflects a new social construct of property rights--one that goes beyond the "background principles" test of Lucas. (3)

The history that gave rise to the land use planning-environmental regulation distinction (which from this point forward will be referred to as the land use-enviro distinction) and relevant case law are reviewed in the first two parts of this article. A discussion of various trends and non-feminist, non-geographic critiques that anticipate the distinction's demise follows.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

The Land Use - Environmental Law Distinction: A Geo-Feminist Critique


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?