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Page added on March 13, 2015
Adjusting the Fifth to a Finite Planet
Infinite-Planet Thinking is deeply embedded in our political economy. It’s there in the expectation that investments will pay off at a continually compounding rate. It’s there in the unquestioned consensus among elected officials that economic growth is always good–that it can’t possibly ever be uneconomic growth, costing us more in lost natural and social capital than we gain from additional consumption. It’s there in expressions of concern that some key indicator–housing purchases or starts, car sales, or purchases of other durables–has failed to rise from year to year or quarter to quarter. In a steady state, sustainable economy suited to the planet we actually inhabit, indicators like those wouldn’t rise continually. (Most would fall considerably before leveling off, because policy would promote durability and repairability, and manufacturers would be given incentives to use modular construction that would allow regular updating of only those components that need it.) Automobile sales would decline steadily, because a sustainable civilization would invest in mass transit and rapid inter-city rail, turning the private automobile into a major expense that most of us would willingly do without.
One less-obvious place that infinite planet thinking clashes with reality is in American Constitutional law, particularly the case law that has amplified one particular clause of the Fifth Amendment: the clause that forbids government from taking private property for public use without “just compensation.”
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The harms that the Fifth Amendment’s Takings Clause was intended to prevent were familiar to American colonists, as Britain had forced them to bear the costs of war (French and Indian, the Revolution itself) by quartering troops in private homes and by seizing without payment horses, wagons, farm produce, and silage. For a century and a half after the ratification of the Constitution, the Takings Clause was construed to apply only to that kind of physical invasion of property or a taking of title. Thus, in 1915, when the City of Los Angeles expanded its boundaries and enclosed an existing brickyard that was then held to be in violation of nuisance laws and attendant zoning regulations, no compensation was due to the owner whose operations had been summarily shut down (Hadachek v. Sebastian). No physical encroachment, no loss of title, no taking.
That interpretation was overturned in 1922, in Pennsylvania Coal v. Mahon, in which the Supreme Court held that a regulatory change could constitute a taking if the regulations go “too far” in limiting uses of the property.
How far is too far?
The court had difficulty saying. Over time, one sturdy guide emerged: following its decisions in Penn Central Transportation Co. v. New York City (1978) and Kaiser Aetna v. United States (1979), and using language first proposed in a 1967 law review article, the court is most likely to find that a regulatory taking has occurred if a property owner has reasonable, investment-backed expectations to develop the property in ways that new regulation forbids, and no other avenue of development or use is likely to provide a similar return.
A full-scale review and critique of Takings case law from a steady state, finite planet perspective would be useful, but no scholar has yet done such thing. Among the trends visible in Takings case law is this one: in a crowded world that lacks ecological resilience, some acts that would otherwise pass for private become decidedly public in their character and consequence. Thus, a person who plants ornamental cedar trees can see them condemned as public nuisances, and cut without compensation, if they carry a form of tree disease fatal to nearby apple orchards (Miller v. Schoene, 1928). A property owner who wants to fill in a wetland to build a house finds that he can’t–and that he should have known that when he bought the property (Claridge v. New Hampshire Wetlands Board, 1984). Whether a man can build houses on land he owns becomes a matter of public interest if the land happens to be environmentally sensitive barrier island, newly protected by coastal zoning laws (Lucas v. South Carolina Coastal Council, 1992). And whether the owner of an auto parts store can expand her building is not simply a private decision if the addition would encroach on greenspace the town plan identifies as both a future bikeway and an environmentally useful drainage swale (Dolan v. City of Tigard, 1994).
Wetland sm – Glass_House
We need to reset the Fifth Amendment’s default to hold that a taking occurs when property owners deprive their fellow citizens of ecosystem services. Photo Credit: Glass_House
The problem: under current interpretations of the Takings Clause, ecologically wise decisions about wetlands, barrier islands, and drainage swales require financial compensation to landowners affected by them, making preservation of ecosystem services prohibitively expensive. In Lucas and Dolan, the public was required to compensate the landowner at market prices for preventing the socially undesirable construction. A spate of hurricanes has shown how valuable barrier-island ecosystem services can be. If the public has to buy those services back, parcel by parcel, at market prices, suffering the billion-dollar property losses brought by storms begins to look like the least-cost option.
This perverse situation follows logically from the infinite-planet assumptions that lie behind our Anglo-Saxon tradition of property law. An infinite planet has ecosystem services galore–so much that loss of services from any single ecosystem leaves “enough, and as good” remaining. The words are English philosopher John Locke’s, who held that individuals have a right to take from the commons only if their taking meets this proviso. But Locke went on to argue that once money is invented, private appropriation for sale to others leads to economic growth, which can go on forever, releasing us from this limit. “He, that incloses Land and has a greater plenty of the conveniencys of life from ten acres, than he could have from an hundred left to Nature, may truly be said, to give ninety acres to Mankind.”
Locke is all too obviously an infinite planet thinker. Our property law, built on his precepts, finds that a taking occurs when public authority preserves environmental values from private development. We need to reset the Fifth Amendment’s default and run it the other way, to hold that a taking occurs when property owners deprive their fellow citizens of ecosystem services. Anyone who proposes to develop a plot of land should be required to show that the loss of ecosystem services to the public will be insignificant–that the proposed act meets Locke’s original criterion. If it doesn’t, the property owner should be required to pay the cost of mitigation, or of ecosystem restoration elsewhere, or of providing equivalent services from built capital.
Unfortunately, this is just the line of development the Roberts court foreclosed in its 2013 decision in Koontz v. St. Johns River Water Management District, the latest in the Court’s infinite-planet Takings tradition. (As Donella Meadows once wryly noted, if you want to know where the leverage points are in a complex system, look for where the system’s power is pushing hard in exactly the wrong direction.)
If no equivalent mitigation or replacement is possible, and if there is a reasonable, science-backed expectation that loss of those particular ecosystem services would diminish human wellbeing, then the public has legitimate authority to prevent the destruction of those services without providing compensation. To argue differently is to argue that title to property conveys the right to hold civilization hostage. It’s to argue that if the public wants to secure the blessings of ecosystems to future generations, they’ll have to pony up and buy their children’s future from private owners, parcel by parcel, at current market rates.
That’s not only unrealistic and intergenerationally unjust, it risks the loss of civilization in order to protect the property interests of individuals within that civilization. That’s a very odd thing to do.
Next: three paths forward.
13 Comments on "Adjusting the Fifth to a Finite Planet"
Rodster on Fri, 13th Mar 2015 3:17 pm
“NASA Scientist Warns “California Has One Year Of Water Left””
http://www.zerohedge.com/news/2015-03-13/nasa-scientist-warns-california-has-one-year-water-left
Apneaman on Fri, 13th Mar 2015 3:19 pm
Lucrative New Oil Extraction Method Involves Drilling Directly Into Gas Stations
http://www.theonion.com/articles/lucrative-new-oil-extraction-method-involves-drill,38028/
penury on Fri, 13th Mar 2015 4:19 pm
As always, protect the 1 per cent, hose the rest.
rockman on Fri, 13th Mar 2015 5:39 pm
CA has centuries of water left. Perhaps not enough for future populations and ag businesses. Barely enough to sustain what’s there now. But lots of space and water in Utah where many from CA have already relocated. Folks have talked about population control in China for decades. Maybe they should have focused on CA. Like maybe initiating a “one nerd” policy. LOL.
DMyers on Fri, 13th Mar 2015 6:45 pm
What Eric Zencey fails to point out is that the legal system balances the interests in these cases. Great harm to civilization will be weighed into a court’s decision. The harm to the landowner will be considered, and if the landowner’s investment is trivial, in relation to the good of the greater number, that too will be taken into account in the context of a legal action.
Allowing the government to steal more property from private citizens, however grand the motive, will not, in the longer term, turn out to be a benefit to the greater number. This power would fall into the hands of the one percent, who often hide their crimes behind good intentions, and ultimately cause what it is intended to prevent.
Makati1 on Fri, 13th Mar 2015 7:00 pm
If you think you own anything in the US, you are wrong. You are being allowed to use that property for only the time you can pay the ‘rent’ (mortgage/taxes) or until ‘they’ decide they have a more profitable use for it. Most never realize that fact as it is not talked about except in times of massive foreclosures, like the 1930s. It’s happening today, but it being ignored by the MSM in favor of the Kardashian antics.
Davy on Fri, 13th Mar 2015 7:04 pm
If you think you own anything anywhere you are wrong
Rodster on Fri, 13th Mar 2015 7:28 pm
“If you think you own anything in the US, you are wrong.”
That’s pretty much the case everywhere. I choose NOT to own only because I don’t want to enrich the Banksters as well as local Govts who are in the business of a shakedown with their property taxes.
I live/rent in a small island community in SW Florida and my neighbor is paying $10,000 per year in property taxes. I on the other hand live next door and rent a modest 950 sq ft apt for $625 p/m and live 3 blocks from the beach.
I bought one house and sold it within 2 years when I discovered the scam of home ownership. But as it has been mentioned, home ownership can be a lot worse in other parts of the world.
theedrich on Sat, 14th Mar 2015 1:26 am
On the issue of “Infinite-Planet” thinking, consider this quote from astrophysicist Fred Hoyle, Of Men and Galaxies (Seattle: University of Washington Press, 1964; 1966; p. 65):
Our special problem today is just this: we are essentially primitive creatures struggling desperately to adjust ourselves to a way of life that is alien to almost the whole of the past history of our species. When I say this, you must understand that by past history I do not mean just the last few centuries or the last few thousand years, but man’s long evolution over tens and even hundreds of thousands of years. It was this long evolution that determined our basic physical and psychological characteristics, not recent history, not the period since the Romans or Greeks, for instance.
The United States, in consequence of its fundamentalist Protestant founding, is violently opposed to this observation and, indeed, to the very concept of evolution itself. It is this maniacal opposition that has led to the demonization of those who prefer to maintain their own race instead of going extinct. It is the real basis for the invention of such accusatory words as “racism” as well as “sexism” or “homophobia,” and the like. Even though Abraham Lincoln himself may have started the Civil War (1861-65) in order to keep the Union together, the real motivation and ferocity behind that war was religious, and had little to do with unitedness. The Puritan ethic was and is based on murder of one’s brother, if that brother did not conform to one’s own religious fanaticism. A contemporary example: David Boren, the deranged president of the University of Oklahoma, in a carefully staged act of indignation, recently (2015 March 10) expelled from the school two frat boys who incautiously led a chant with the word “nigger” in it. Since Boren is a member of the anti-free-speech Church of Obama Worshippers, free speech must not be allowed there if he and the media hypsters do not like it. Bye, bye, U.S. constitution.
Similarly, on Peak Oil blogs where the collapse of Western or global civilization — and even the utter extinction of homo sapiens — is frequently discussed, perusers perfunctorily accuse other contributors of the allegedly far greater horror of being “racist.” One must never mention the wide evolutionary disparities between the races, especially the fact that U.S. Blacks (with about 12%-15% White genes) average IQs of 85, 15 points below typical Whites and 20 points below average Mongoloids. (And yes, yes, we know all about the rule-proving exceptions.) Carefully cultivated White guilt has sluiced trillions of dollars down black holes in Black Africa, which to this day remains utterly unable to maintain itself without White aid. Special laws add draconian penalties to any legal infraction where the infractor’s motive can be seen as “racist.” There is no end to this mania.
The general neurosis sprung from colonial Protestantism can be seen in many other areas as well. The ridiculous prudishness which considers the female nipple the equivalent of the evil eye (“Protect the children!”) is but one illustration. The gross hypocrisy which pervades our political system is another one. The reintroduction of slavery (this time, of Latinos) and the “no-questions-asked” purchase of very young children kidnapped from their parents in Mexico or elsewhere is another. And the current anti-police viciousness whipped up by high Democrats and their media friends would likewise be unthinkable without the oedipalism fostered by said Protestant (“Christian”) demonizing.
Meanwhile the rest of the civilized world can readily see that the current president, who appears regularly on nightly joke shows, is himself a joke. The United States is now perceived as incapable of wielding its former power as world cop. Hence ISIL, hence Russia’s invasion of Ukraine, hence the destruction of the American demographic situation by ThirdWorlders who, like all parasites, are “just looking for a better life.”
However, as we progress down the backside of Peak Oil, evolution will see to it that the Yankee farce ends up as no more than another failed experiment of evolution.
Apneaman on Sat, 14th Mar 2015 2:13 am
IQ tests are a fucking joke and so are you you white trash nigger cracker gook spook white bread slope inbred chink fag dyke wet back red neck homo. How do Southern whites who live below the poverty line score on IQ tests VS middle class blacks or Latinos? How do middle class whites score on Chinese IQ tests? Are all the participants DNA tested for racial Purity? Have you ever taken the Russian IQ test? The German one? How about the Japanese one? Is the American IQ test the same as it was 20 years ago? 50? Why do “The Masters of Intelligence” keep changing the test? Where does that 1-3% of Neanderthal DNA that everyone except pure bred sub Sahara Africans have fit in?
I favor Ernst Mayr’s belief that intelligence is a “lethal mutation”. We will not be missed.
GregT on Sat, 14th Mar 2015 2:34 am
“If you think you own anything anywhere you are wrong”
Exactly what the North American “savages” tried to explain to us when we first invaded. The land is not ours, it is our responsibility to take care of it to pass on to our children.
The capitalist mindset believes otherwise. The world belongs to us, and when we die, we will take it down with us.
theedrich on Sat, 14th Mar 2015 3:56 am
Ah yes, Apeman. I can see that you have studied the matter thoroughly. Clearly your intelligence is a lethal mutation.
Davy on Sat, 14th Mar 2015 7:05 am
Exactly Greg/Thee/Apeman. Our real knowledge, spirituality, and nature is pre-modern man. Google the Kogi (http://en.wikipedia.org/wiki/Kogi_people) for a modern day example of the big brother little brother understanding. We modern man are the little brother engaged in poor activity destroying our mother.
We can complicate this discussion but in simplicity is a basic overshoot of spirituality into barbarianism, knowledge into darkness and overshoot of technology into unattainability. Nature is leading us back kicking and yelling but back nonetheless to our true nature. Nature is real. Only nature can overcome nature.