Using Federal Environmental Regulations to Bargain for Private Land Use Control
Pedersen, William F., Yale Journal on Regulation
Our federal government currently pursues environmental protection largely through regulations that require others to comply with detailed standards or prescribed patterns of conduct. This approach conflicts too fundamentally with the autonomy interests of landowners, and of the state and local governments that regulate land use already, to allow federallyimposed limits on private land use. Yet environmental improvement will increasingly require land use limits. To achieve them, regulation should be replaced with "bargaining entitlements"-assets of limited value that the federal government could use to negotiate with other parties for necessary restrictions. Indeed, agencies are already converting their regulatory powers into such entitlements. By using bargaining entitlements, the federal government would act more as an equal participant in negotiations than as a unilateral issuer of "top down" commands. That change in approach could reconcile the conflicting interests of landowners, state and local governments, and environmentalists more effectively than regulation. It could provide more effective environmental protection; it could improve both respect for property rights and the constitutional defensibility of federal land-use control efforts; and it could encourage the development of regional land-use plans, which will be needed to reconcile environmental protection with other social interests.
Thirty years of federal environmental regulation in this country have resulted in substantial reductions in all forms of industrial pollution. As industrial pollution declines, pollution from land use automatically ascends in relative importance. Run-off from developed land already accounts for more than half of the United States' water pollution. And as overall pollution levels recede, preserving wildlife habitat will rise in the environmental priority scale. Private land use controls will be necessary to address these increasingly important issues.1
Our current environmental laws either do not address private land use or address it in general and unfocused terms. Although the Clean Water Act2 promises to clean up the nation's waters, its command is ultimately symbolic, since the statute fails to grant the federal government the landuse control power it would need to achieve this end. Our habitat preservation statutes-the "Section 404" provisions for preserving wetlands3 and the Endangered Species Act ("ESA")4-do impose real land-use constraints. They do so, however, by applying an inchoate procedural burden to all areas under their authority, without selecting any specific lands for actual preservation. That approach is both ineffective and inefficient, since it can neither guarantee protection for the most sensitive places, nor avoid placing regulatory burdens on parcels less vital to wildlife preservation.
These statutes embody the command-and-control regulatory approach traditionally used for environmental protection. Congress prescribes in detail both the goals to be achieved and, often, the means to achieve them, while administrative agencies supply any missing means by issuing and enforcing rules that tell the regulated entities how to comply. Although command and control has been heavily criticized for its failure to accommodate the interests and capabilities of those it regulates, it has controlled industrial pollution reasonably well. In contrast, federal command and control has proved almost totally unable to address the environmental problems caused by private land use. That failing, in turn, has led to an artificial neglect of these problems.5
This Article contends that such problems of governance could be overcome, and environmentally protective land-use control could be promoted, by replacing our current top-down procedures of law creation with the bargaining entitlements approach used in the private world. Our legal system does not typically accommodate the …
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Using Federal Environmental Regulations to Bargain for Private Land Use Control. Contributors: Pedersen, William F. - Author. Journal title: Yale Journal on Regulation. Volume: 21. Issue: 1 Publication date: Winter 2004. Page number: 1+. © Yale University School of Law Winter 2009. Provided by ProQuest LLC. All Rights Reserved.
This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.