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. …