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

According to Professor Joseph L. Sax, "[h]istorically, property definitions have continuously adjusted to reflect new economic and social structures, often to the disadvantage of existing owners."353 This history is well documented and has been the subject of numerous studies invoking the evolution of property law as justification of later developments in that body of law.354 The infusion of the environmental ethic discussed above into that law may be seen as the natural progression in the evolution of property law.355 Though stumbling blocks may exist, such as the majority opinion in Lucas, the science of ecology and the environmental ethic will affect the path of evolution of real property law. This is certainly the fate of real property law, which we will view in retrospect much as we now view the property law which evolved around and bolstered human slavery, that peculiar institution which was tolerated, and indeed encouraged by our system of laws.356

In a sense, the majority in Lucas was attempting to burn a bridge behind it to prevent a maelstrom of ecologically based environmental regulation from taking hold.357 It is the thesis of this Article that such regulation is the next step in the natural and omnipresent evolution of real property law.

Ironically, it is the Lucas case that challenges us to devise and develop an evolutionary trend in real property ownership law, which will add the consideration of purely ecological and environmentally ethical restrictions on the use of private property. The Lucas case presents itself as a speed bump on the road to the infusion of environmental ethics into our regulation of real property.358 As such, it challenges us to explore the avenues which it excepts from being defined as takings: nuisance359 and the nature of the estate owned. Nevertheless, to be more than an intellectual exercise, this thesis must delineate the parameters that will work within the Lucas restrictions, to allow for regulations solely based on ecological need to pass muster as a part of the bundle of rights that are affected by the natural evolution of ownership:

1. Green wood looks at real property as unique, and therefore of value360 even when unusable 361 This basic fact deflates the fiction in the Lucas case that the property considered therein had no value. No piece of land can be considered to be without value or substantially without value.362

2. Regulation based wholly on ecological principles is: (A) valid exercises of police power; and (B) by definition aimed at the relief of a public nuisance.363

3. Mandating the maintenance of environmental context does not alter the value of the real property as to invoke a taking.364 These attributes therefore can be built into the owner's estate, if incorporated therein under state law.

Three cases recently decided by the New York State Court of Appeals365 have construed the Lucas Court's criteria of "logically antecedent inquiry into the nature of the owner's estate."366 The case of Kim v. City of New York367 has construed the nature of the owner's estate to be governed both by state common law and statutory law.