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

The inclusion of this green wood into the bundle is evolutionary, not revolutionary. It will promote an understanding that existing rules and sources, which though implicit, are part of our value system and therefore the essence of our real property law, mandate environmental protection.343 It will not effect a moratorium on development, but perhaps stimulate a more substantive environmental impact assessment process, and greater adherence to a land use scheme that also must be prepared in accordance with that procedure.

The examination of the historical and philosophical bases for the current metaphor for property ownership reveals its strengths and frailties. As Professor Joseph Sax has suggested, the current model might be replaced with one based on the principle of usufructuary rights.344 While Professor Sax is correct in his analysis, the question of whether the paradigm of ownership had ever left the realm of usufruct, except in metaphor, is one that is based on the history of ownership, and cannot easily be dismissed. Within the usufructuary framework, a metaphor of property ownership could be accomplished which incorporates the science of ecology and the ethic inspired by Aldo Leopold. As Professor Sax states, "property can serve two masters: the community and the individual."345 In setting the parameters for green wood it is necessary to consider the realm of the usufruct, to promote equity, while recognizing the uniqueness of each parcel of land. However, since the concept of usufruct is so fundamentally alien to the American people, when placed as a restriction on their ownership of property, its likelihood for institutionalization is minimal.

The very metaphor that is used to describe property and its underlying connotation as rights rather than things, has limited our application of environmental values that society has accepted. While it is true that the concept of property is somewhat vacuous when thingoriented, it is also deficient when the definition is devoid of reference to it. The absence of this reference is particularly troubling with regard to real property. In an effort to raise the theory of property to a universal and highly intellectual principle,346 the res was forgotten. The bundle of sticks has no ties to the ground. In the absence of a theoretical connection to the real nature of real property, the treatment of it, without regard to any environmental implications is inevitable. The upshot is that the Supreme Court in Lucas347 could treat the property as any other parcel of land, regardless of its location and circumstances.

Perhaps it is time for the common law to root the bundle of sticks for real property to the ground, and thereby ground the theoretical notion of property with the current reality of ecology and the societal values comprising environmental ethics. As Oliver Wendell Holmes has stated, "The life of the [common] law has not been logic: it has been experience."348

A. Green Wood Grows in New York

In the exercise of its legitimate police power, the government may regulate, but the state of the law after the decision of the Supreme Court in the case of Lucas would indicate that the pursuit of purely ecological goals is subject to compensation.349 In two areas the government's right to regulate without liability for compensation remains clear: (1) where the action prevented is a nuisance under the common law;350 and (2) where the "proscribed use interests were not part of his title to begin with [and less than a total taking]."351 This, the Court terms, is the "logically antecedent inquiry into the nature of the owner's estate."352