Ecology and Environmental Ethics

Green Wood in the Bundle of Sticks

Robert Jay Goldstein

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781351159463
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho medioambiental

Originally published in 2004. Examining the successes and failures of three decades of environmental law, this absorbing book reconsiders some of the policies devised to remedy centuries of abuse of the planet. It acknowledges the advances made using technological standards to effect pollution control as well as rudimentary systems that regulate use of land at the local level. However, as the author observes, these systems have limitations in solving vexing problems such as sprawl and non-point source pollution, as the cost of their use can easily outweigh the benefits. He suggests a system, termed 'Green Wood in the Bundle of Sticks', that provides the necessary theoretical and historical bases to bridge the gap between the potentials of each system. Using objective criteria based on science, this system is tied to a land ownership system that also takes into account societal concerns at a broader level.

Chapter 1

Introduction: “Green Wood”

To be alive, wood must be rooted and green. Green Wood will bend when twisted; it will endure fire; and it will resist breaking. Even when cut and detached from its roots, wood remains green for some time. Eventually cut wood dries out and begins to rot. The bark covering a piece of wood often hides whether the wood is in fact living or dead. Scratch below the twig’s surface and its color will indicate the difference between the brittle, detached sticks, and the Green Wood.

As we step beyond the thirtieth anniversary of the environmental movement, we can survey the successes and failures of policies devised to remediate centuries of abuse of our fragile planet. In those thirty years we have seen several legal systems take root to address continuing environmental concerns. Notable among these are the regulatory systems designed to apply technological standards to effect pollution control. Another is a system of land use laws that have met with some success in regulating uses of land at the local level to limit uncontrolled sprawl. Both of these systems have limitations. Regulations can only reach so far before the costs of such a system heavily outweigh the benefits. This explains the almost universal de minimus exceptions that accompany such laws. This is further demonstrated by the inability of current regulations to address non-point source pollution.¹ Land use, invariably involves subjective choices by local interests that may not be based on either objective criteria, or larger scale societal needs. A system that would bridge this large gap between the potentials of each system is needed. That is the genesis of Green Wood in the Bundle of Sticks. Like a land use program, it is tied to the land, to individual parcels. It emanates from decisions made at the local level, and is enforced at the same level. Like a regulatory program, Green Wood has objective criteria based on science, as well as a focus that considers a broader level of societal concerns.

To construct such a system it is necessary to analyze the theoretical and historical bases that might justify it, and ground such a system in a discipline of law that will accommodate it. That discipline is real property law.

Real property refers to ownership of rights in the land or soil, and an estate is a possessory interest in real property.² As land, or soil, real property is a part of the natural world, part of the biosphere we call earth, and part of smaller functional units which we call ecosystems.³ There is a connection between pieces of that land, as all are interconnected. The land may be perceptibly limited to its surface, (as well as some finite below-ground areas, and some airspace, as in the case of buildings) but the soils, runoff, and ground water below, and the airspace above, as well as the flora and fauna which occupy surface, air, and below-ground, are the vectors of the interconnection.⁴ This book is concerned only with real property, and neither with the fixtures appurtenant thereto nor with personal property. This distinction is necessary to further the thesis that real property warrants distinctive treatment based upon its unique character and function.⁵

An estate-in-land is often identified by its limiting factors in terms of the claims of others to title.⁶ The estate that will be referred to herein is the estate that carries with it the most complete or the “ultimate” legal title.⁷ In Roman law the condition might be described as dominium,⁸ in terms of modem U.S. law that estate might be referred to as “fee simple.”⁹ It is understood that conditions and limitations do exist with lesser interests in real property; indeed, conservation easements exist for the very purpose of imposing environmental ethics upon privately held land. These lesser estates will, a fortiori, be subject to a subset of the rights and obligations found to be incidental to the ownership of the estate that carries with it the ultimate legal title in real property.

The possessory estate has certain characteristics, which “include the rules regulating relationships with neighbors as to lateral and subjacent support, as to nuisances, and as to the adjustments of conflicting claims to the available resources of nature, such as stream water, percolating water, surface water, oil and minerals.”¹⁰ The estate also has characteristics that limit an owner’s property rights as a member of the community who must conform to social norms.¹¹ This curtailment exists for the promotion of society’s best interests, and have grown more important as society has grown increasingly complex. This has resulted in a balance between the individual’s private property and the societal interests that curtail use. “The current balance between individualism and dominance of the social interest depends not only upon political and social ideologies, but also upon the physical and social facts of the time and place under discussion.”¹²

The Physical Facts

The “physical” facts of a particular situation regard the real property itself: the land or the earth, which is the subject of the estate. The land or earth is not merely a conceptual theory but is a physical reality, and as such is part of the greater system of biotic units that science has identified using the term ecosystems. “An ecosystem is basically an energy-processing and nutrient-regenerating system whose components have evolved over a long period of time.”¹³ These ecosystems are earth’s “life-support systems.”¹⁴

The ecosystem is recognized as one basic unit of the situs of our existence.¹⁵ The recognition of the systemic nature of the ecosystem inexorably links the land or earth that is the subject of one estate to the land or earth that is the subject of another. This linking occurs both spatially and temporally. The nature of the system can link distant estates as well as adjacent ones. These ecological principles, though still part of an evolving definition of natural patterns and processes, are defined through the science of ecology.

The Social Facts

The “social” facts are based on a combination of societal needs and wants, and the development of ethos. These social facts may be based on what Locke calls “natural consent,” which people are led to “by a certain natural instinct without the intervention of some compact …”¹⁶ The price for living in a society that delivers benefits to the individual is the relinquishment of certain rights that one might otherwise have exercised. The application of a set of principles by which society will curtail those rights is a fluid process, especially with regard to society’s view of its relationship with the environment.

Historical Focus

Taking a wide historical focus, it becomes apparent that the laws regarding ownership have evolved dramatically, with clearly identifiable causes and motivations.¹⁷ Even a narrow focus on the history of American property law since the ratification of the Constitution reveals meaningful changes in both the theory and practice regarding real property ownership. This understanding is necessary to evaluate the modem definitions of the nature of real property ownership, and the characteristics of the possessory estate.

There has also been a continuous evolution of the morals and conduct of society regarding the environment that is accomplished on the basis of knowledge and experience.¹⁸ This is exemplified by the evolution of references to such terms as “wilderness,” which have come full-circle: from Old Testament¹⁹ references to the place where the Israelites sought out the “glory of the Lord,”²⁰ to a place of the devil,²¹ and “earthly realm of the powers of evil,”²² then as the new frontier to be “conquered,”²³ and finally as a refuge, “that same raw stuff is something to be loved and cherished, because it gives definition and meaning to his life.”²⁴

The issue of “how far private ownership should stretch and to what extent it should be modified in the public interest”²⁵ cannot be understood without an “adequate analysis of the concept of ownership.”²⁶ Although slower in evolving than other bodies of law, the laws of real property ownership are neither stat...

Table of contents

• Cover
• Half Title
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgments
• Series Preface
• 1 Introduction: “Green Wood”
• 2 The Social Evolution of American Real Property Law
• 3 The Development of American Property Law
• 4 Contemporary Concepts in American Property Law
• 5 Ecology and Property
• 6 Environmental Ethics and Property
• 7 Green Wood in the Bundle of Sticks
• 8 Practical Implications for Green Wood
• 9 Green Wood and the Future of Environmental Law
• 10 Conclusion
• Index