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

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
  • A full archive of books and articles related to this one
  • 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.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

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

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger Reset View mode
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?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

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

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    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.