Redefining property rights

To restore the bay, we must consider land use in a new way that reflects current cultural values

October 17, 2008|By Roy Gothie

The modern concept of property rights substantially contributes to the Chesapeake Bay's continued decline. At this point, tinkering around the edges of the issue with minor changes to laws and regulations will no longer be enough to save the bay. Only a societal decision to redefine an individual's rights regarding property can restore the bay and other critical ecosystems.

Developers, industrialists, homeowners and farmers have long assumed that the core bundle of rights attached to a piece of property exists to benefit the property owners. This is not exactly the case. Property rights are creations of the state, designed to ensure a stable, civil society and a functioning economy. Thus, any property rights a land owner possesses exist mainly to serve the greater public good.

Historically, society's need for economic growth favored intensive, extractive use and privileged individual property owners by restricting others from interfering in the use of "their" land. This view failed to consider the almost unimaginable sensitivity and complexity of multiple ecosystems or to accurately value the future needs of society. The ecological disasters that resulted from this misconception can be observed across the Chesapeake Bay watershed.

We must therefore redefine rights in property based upon current scientific and cultural valuations of ecosystem services. It has been suggested by some that instead of altering property rights, we should place monetary values on ecosystem services and balance those numbers against the benefits derived from the farmer's harvest or the developer's new town center. But can the present value of a 40-acre wetland that filters our water, traps toxins and provides vital habitat for animals and natural beauty for people be adequately calculated by economists? Other experts suggest paying farmers or developers to act in a more sustainable manner. This solution inevitably suggests that protecting our neighbors (human and otherwise) is not a moral obligation.

The most sensible option involves putting the land to a use for which it is suited. Steep slopes make poor grazing or timbering sites; flood plains remain ill-suited for residential development; the groundwater fails as a repository for sewage; and fertile soil cannot support large-scale, chemically based, intensive agricultural practices. The current model must yield to an insistence that one landowner may not so damage the land he or she owns that it interferes with the reasonable use, by neighbors or society, of the ecosystem that they all share.

But how can a new property rights paradigm that appropriately reflects our cultural values be achieved? What follows is a list of possible steps that would move our culture and economy in the appropriate direction:

* Place more emphasis on Smart Growth and new urbanism initiatives that support dense, walkable communities.

* Increase demand for environmentally sustainable products through intense consumer awareness programs.

* Require students at all levels to take part in science and math instruction that emphasizes ecological restoration and supports long-term involvement with local communities.

* Encourage the use of nuisance laws to prevent environmental damage and revitalize the common law to reflect modern science and cultural values.

* Reduce the commodification of nature through less support for industrial agriculture and more for small community farms.

* Better protect crucial ecosystems through regional planning and mandated standards for local zoning regulations.

* Apply tax breaks for nonextractive land uses such as solar, tidal and wind power.

* Support the development of carbon taxes and carbon trading markets.

* Better educate local officials and court officers regarding environmental issues.

This series of steps would initiate a substantial shift in the role of property rights while demanding difficult and long-overdue cultural, legal and scientific conversations within this country regarding our social responsibilities. It is worth remembering that our laws reflect our culture, and the condition of the Chesapeake Bay reflects the value our culture has placed on its future. Let's make sure we like what we see when we examine all of them.

Roy Gothie, a planner for the Maryland State Highway Administration, holds advanced degrees in environmental policy and planning, urban planning, wildlife resources and environmental science. His views do not reflect SHA policy. His e-mail is r.gothie@

gmail.com.

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