Green wood in the bundle of sticks: Fitting environmental ethics and ecology into real property law

Leopold's reference to the "integrity, stability, and beauty of the biotic community"'247 is clearly a reference to "an ecosystem, and its capacity to withstand change or stress.''248 Environmental ethics is based on the understanding of the science of ecology, which identifies and quantifies the patterns and processes that operate in that system we call nature. Understanding of those processes as the means by which nature both maintains and regulates the existence of life on earth implies that maintenance of those patterns and processes should be seen as a basic ethic appurtenant to the maintenance of human life. Modern paradigms of ecology place emphasis on the flux of nature, rather than any notion of a steady state or climax, as in the case of a forest. Rachel Carson (1907-1964) was also instrumental in congealing the attitudes of society to focus on the destruction of ecosystems by pesticides, and thereby moved the activist population of the 1960s toward environmentalism.249 The works of Carson, Leopold, and Thoreau, and many others, did more than simply expose a threat to the environment-they provided the impetus for popular movements that have evolved into the modern environmental movement.

What is an environmental ethic? It is an understanding that in an ecosystem every action taken has consequences; those consequences may be adjudged as positive or negative values based on the needs of society; and that persons must act as stewards of their domain, whether that domain be their "owned" real property or some lesser interest, to prevent actions that cause negative consequences. The extent to which this (or any) environmental ethic has become assimilated into our core values is the key issue to be determined. There are limits to environmental ethics based upon sound ecological principles. The human animal is a part of the ecosystem, not merely an aloof observer.250 The human has the ethical right to be a participant in its environment, and that participation is limited only by the constraints that human society has placed upon itself and the component of that restraint which is the environmental ethic.

A. Environmental Ethics and Stewardship

Aldo Leopold wrote in his classic essay, "The Land Ethic," "[A] land ethic changes the role of Homo sapiens from conqueror of the landcommunity to plain member and citizen of it. It implies respect for his fellow-members, and respect for the community as such."251 From this land ethic, and based on Leopold's writings, the concept of stewardship has been developed. "Obligations have no meaning without conscience, and the problem we face is the extension of the social conscience from people to land."252 The application of this social conscience to land is the essence of the distinction between ownership and stewardship. It is also the understanding that the presence of green wood in the bundle of sticks gives us the obligation that must be applied with conscience based on our understanding of the importance of land beyond that of the inanimate sticks in the bundle. Leopold pointed to the moral obligation of stewardship, noting with frustration that the "proof that conservation has not yet touched these [ethical] foundations of conduct lies in the fact that philosophy and religion have not yet heard of it."253 That yearning of Leopold's has been satisfied by the environmental movement, which has effected an "internal change in our intellectual emphasis, loyalties, affections, and convictions."254 Because of this precipitous progress, we are ready as a society to take the next logical step in a line that began with the earliest concepts of property, and that evolves still. The green wood in the bundle of sticks makes stewardship a legal responsibility in addition to a moral one.