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

There is an increasing awareness of the environment among judges that is "reshaping traditional notions of property and the relative claims of private owners and society at large to the use and preservation of land."273 That policy is specifically enumerated as the basis for law in several cases. In In re Christenson, the Supreme Court of Minnesota cited Aldo Leopold.274

Over ten years ago this court cited the conservationist Aldo Leopold for his espousal of a "land ethic" which envisions a community of interdependent parts. "The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land." We reaffirm our statement there that the state's environmental legislation had given this land ethic the force of law, and imposed on the courts a duty to sapport the legislative goal of protecting our state's environmental resources.275

In County of Freeborn v. Bryson, the case referred to above, the Supreme Court of Minnesota had declared that, "A generation ago, the conservationist Aldo Leopold espoused a `land ethic.' . . . In the Environmental Rights Act, our state legislature has given this land ethic the force of law. Our construction of the Act gives effect to this broad remedial purpose."276

In the case of Department of Community Affairs v. Moorman,277 the Supreme Court of Florida upheld a zoning restriction that regulated the use of fences on private property to protect the endangered Key Deer.278 The court noted that "we have repeatedly held that zoning restrictions must be upheld unless they bear no substantial relationship to legitimate societal policies."279 In defining those "legitimate societal policies," the court noted that "the unregulated erection of fencing in the affected area is contrary to Florida's overall policy of environmental stewardship."280

Almost every state has some mechanism for the assessment of environmental impacts. There is a grassroots movement that has proposed an environmental amendment to the U.S. Constitution.281 Some states, including Illinois,282 Massachusetts,283 Michigan,284 Montana,285 and Virginia,286 have constitutional provisions that are aimed at protecting the environment.287

The Pennsylvania Constitution, Article 1, Section 27, provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historical and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.288 It is noted, however, that the Supreme Court of Pennsylvania, in Commonwealth v. National Gettysburg Battlefield Tower,289 held this constitutional provision aimed at protecting the environment unenforceable because it was not self-executing.290 The court noted that "[a] Constitution is primarily a declaration of principles of the fundamental law."291 That declaration is adequate for the thesis herein that refers to these laws exactly for the proposition that environmental ethics are now embodied in the fundamental law of the United States.