A Locke on environmental protection and takings

Time for an environmental law tangent.

I've had an idea for years about applying John Locke's theory of property to environmental regulation that could've taken the form of a scholarly article or test case litigation, except that I've not done anything with it. Given a recent blogalanche of posts on Locke and environmental regulation (two posts that I know of), I thought I'd just blog about it. Somebody else is free to do something more substantive with the idea (maybe they have already* and I missed it), or maybe something will motivate me to do more.

So, the issue: regulation of private property by the US Constitution is limited when it goes too far and becomes a taking of private property that must bring compensation to the property owner. The best test of what "too far" means, so far, is the 1978 Penn Central case, where Justice Brennan sez the following factors must be balanced:

• (1) the economic impact of the regulation on the claimant,
• (2) the extent to which the regulation has interfered with distinct investment-backed expectations and
• (3) the character of the governmental action.

(Wiki for intermediate level detail).

Number 2 there has been somewhat problematic to apply. Enter John Locke!

Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

I see a lot of overlap between investment-backed expectations and the labor theory of property. Mixing your labor to transform the land makes it yours, as does investment that buy the land's transformation done by someone else.

One way to move forward would be to just drop investment-backed expectations and replace it with an analysis of whether the aspect of the land being regulated and protected is something that was created/transformed through human labor versus something that was intrinsic to the land. That, however, isn't going to happen anytime soon, as the law doesn't like to lurch that much. What could happen though is to use the labor theory of property as a means for deciding whether the expectation was reasonable and to determine the moral weight to be placed upon the investment made by the owner.

Environmental protection would generally, but not always, come out ahead under this analysis compared the kludge we have now for takings regulation. Soil and water quality are generally innate to the property and not created by the owner, so protecting them doesn't impinge upon something the owner's labor (or predecessor owner) created. Wetlands were generally there naturally, and similarly could be protected. Important to this is that "failing to harm" the land did not create the environmental values that were there originally. Many landowners who think their years of failing to harm the land gives them the subsequent right to harm it are just mistaken.

But then what if someone decides they want wetlands on their property, create some, and then ten years later change their mind? The labor theory of property would give that owner recourse against environmental regulation that she might not otherwise have. And I think that's okay - on an intuitive level, it makes sense.

Historic preservation has a contrary result where protection would generally, but not always, be lessened under this theory. Imagine a young person erects a distinctive building and then wants to destroy it 60 years later. This theory would give that person or possibly a successor owner a lot more room to claim a historic preservation rule constituted a taking. On the other hand, if a historic event like a battle occurred on the property that was not created by the owner's labor, protection of that historic value could be seen as a public right.

I think this concept could be tested through litigation. Civil rights litigation often preceded by looking at reverse discrimination. For example, gender discrimination in jury selection was thrown out in a case where it was men instead of women that were kept from a jury. I think that would the easiest approach to use to establish for Locke and takings - find a good historic preservation case, or an environmental value on a property that was created through labor and then regulated by government, and defend the landowner. Then we could see the value asserted on behalf of environmental protection more generally.

UPDATE: if anyone wants to collaborate on this, that might be the incentive I need to push it forward.

* A student article by Kraig Odabashian on Locke and investment-backed seems related, but sadly goes to a different concept of a "historic baseline" that I don't like very much. Not sure if anyone else has come closer.