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Abstract:
The land use regulatory system has been criticized for causing or failing to solve social problems and for perceived inherent defects, such as inefficiency, inequality, and environmental harm. These criticisms fail to understand the land use regulatory system in the United States as a dynamic, functional, adaptive system.

This paper systematically analyzes the: 1) functions; 2) location and scale; 3) components; 4) processes; and 5) values of the land use regulatory system in the United States. If we are to improve our land use practices to be fairer, more efficient, and more ecologically responsible, we must understand how land use planning and regulation function and change over time.

Particular attention is given to the role of land use regulation as a mediator between people and places, between communities and power, and between freedom and boundaries. Additional attention is given to the broad array of forces shaping land use decisions, the "thinness" of land use law as a set of rules and limits (contrasted with its role as a source of tools, authority, and discretion), and the "patchiness" of land use regulatory authority in the United States.

This paper also examines a specific issue of law and policy: the extent to which the land use regulatory system can value and conserve ecosystem services - the humanly beneficial services that nature provides. The paper explores both barriers to and opportunities for accounting for ecosystem services in land use planning and regulation.

land use, urban planning, zoning, regulation, ecosystem services, ecosystems, adaptation, complex systems, geography, discretion, sprawl, functionality, environmental ethics, land ethic, place, places, community power, freedom and boundaries, natural capital, political forces, social forces, ecology

Abstract:
Land use and land development adversely affect water quality in many substantial ways. The current land use regulatory system is blamed for its failure to plan and regulate to protect water quality and watershed health, and a frequent suggestion is to move authority for land use planning and regulation to larger ecologically-based scales, such as watersheds, or to regional, state, or national agencies that can act on a watershed scale.

Despite the allure of these proposals, careful study of the scales and functions of watersheds and the scales and functions of land use presents a nuanced picture of both watershed and land use dynamics, suggesting that watershed institutions might be best suited for watershed planning, technical assistance, facilitation of intergovernmental cooperation, and provision of resources and information, while local governments will continue to be best suited to engage in generalized planning, zoning, permit decisions, and other traditional regulatory functions.

This article discusses the impact of land use on water quality, and then explores the scale and function of both watersheds and land use. It offers lessons about the geographic, functional, problem, and temporal scales of watersheds, and the functional, political, resource, and temporal scales of land use, as well as lessons about the legal scale of freedom and boundaries. Attempting to connect both the scale and function of watershed with both the scale and function of land use, the article recommends a hybrid regional-local model of watershed-based planning and regulation of land use.

land use, urban planning, watersheds, water quality, land development, local government, localism, hydrology, environment, geography, land use regulation, ecosystems, conservation, scale, function, complex systems, complexity theory, federalism, freedom, boundaries, political forces

Abstract:
Can environmental law actually achieve environmental conservation or implement an environmental ethic in practice? The environmental movement has been captured by a legal centralist perspective, which asserts that legal institutions and processes are integral to achieving environmental conservation and environmentally ethical behavior.

This article uses a case study of the Mono Lake Committee to explore the role of law in the Committee's success in substantially reducing Los Angeles' water appropriations from Mono Lake's feeder streams and the subsequent restoration of the Lake's unique and valuable environment. The Mono Lake effort is an ideal case study because it involved the landmark case National Audubon Society v. Superior Court, in which the California Supreme Court adopted an innovative legal theory that water rights are subject to the public trust in the environmental conditions of navigable waters. National Audubon has been ranked by legal scholars and environmentalists as among the most important environmental law cases of the twentieth century.

This case study demonstrates that legal institutions and environmental law, while important, are insufficient to achieve actual conservation outcomes, even when environmentalists win major litigation victories. Sustained, effective conservation outcomes depend on: 1) the ecology and psychology of place; 2) public participation, education, and engagement; 3) politics; and 4) creative, collaborative problem-solving. The most significant role of law is to upset settled expectations and entitlements that inhibit innovation and negotiated problem-solving.

This article makes a case for the inter-relationship of multiple forces and factors in achieving environmental conservation and in developing society's environmental ethics. It also makes a case for futher multi-disciplinary study using insights from many different disciplines to map the complex interaction of multiple legal, political, social, cultural, psychological, economic, ecological, educational, policy and planning, and ethical forces in environmental conservation.

environmental law, conservation, environmental ethics, public trust, environmental litigation, prior appropriation, water rights, ecology, psychology, place, public participation, public education, deliberation, politics, innovation, collaboration, problem solving, negotiation, interdisciplinary

Abstract:
The authority and regimes for controlling land use, water quality, and water use are highly fragmented, both internally and from one another. However, a growing body of evidence demonstrates that this fragmentation comes at great cost to natural and human environments, with increasing impacts of land use practices, water quality conditions, and water uses on one another. This article introduces a concept of wet growth that attempts to achieve some level of integration among these three inter-related aspects of law and public policy.

The Wet Growth concept is distinguished from the popular, yet vague, concepts of Smart Growth, which has failed to give sufficient attention to the water-related impacts of land development and use. The article describes examples of emerging efforts to achieve integration of land use and water regulatory policies. It summarizes the ideas and research of several leading scholars in a book on Wet Growth. The article makes a case for policy diversity in the integration of land and water practices, rejecting the desirability of any single model. Finally, it analyzes the role that local land use planning and regulation can play in achieving aquatically and ecologically sustainable land use practices.

land use, zoning, regulation, permitting, planning, water law, water rights, water use, water consumption, water quality, water pollution, Clean Water Act, land development, growth, Smart Growth, sprawl, impervious cover, policy diversity, environmental regulation of land use

Abstract:
The privatization of public water services in the United States has grown dramatically in recent years in response to political and ideological interest in privatizing public services, arguments about economic efficiencies, and the realities of overwhelming public costs related to water quality standards, infrastructure upgrade needs, and operational complexities. Many states have expressly enacted statutes authorizing municipalities to transfer services, operation and management, and even ownership of public water systems to private firms.

This article systematically evaluates the status of water privatization in the U.S., the legal authority for privatization and its limits, and the most common and significant issues in water privatization. These issues include: 1) the unique characteristics of water services; 2) operational efficiency and capital cost savings; 3) rates; 4) service quality and reliability, and water quality; 5) take-or-pay contracts; 6) long-term capital investment, maintenance, and public agency capacity; 7) environmental protection and impact; 8) global commerce in water; 9) security of water supplies and terrorism; 10) equity; 11) public employees; 12) public opinion; and 13) the limited authority of regional public water institutions.

The article makes a case for a state legislation to protect the public and ensure accountability to the public when public water systems are considering privatization. It identifies specific model elements of a comprehensive state statute governing water privatization, including considerations when evaluating privatization proposals and conditions that should be imposed on private water firms. The article takes the position that the term "privatization" can mean any number of different arrangements, which are neither inherently good nor bad. The desirability of privatization arrangements depends on the context, the need, the nature of the arrangement, and legal controls imposed to ensure accountability to the public.

privatization, public water services, water supply, public utilities, regulation, rates, capital costs, Safe Drinking Water Act, environmental protection, public water institutions, public employees, security, terrorism, take-or-pay contracts, capital investment

Abstract:
The metaphor of property as a "bundle of sticks: or "bundle of rights" leads to the "disintegration of property": a concept of property that is too incoherent, ill-defined, and malleable to be meaningful. This article identifies several theoretical problems with the bundle of rights metaphor, and proposes a new metaphor of property as a web of interests.

The "web of interests" metaphor describes property as interests - including responsibilities, as well as rights - that people, groups, and entities share in objects of those interests (whether tangible or intangible objects). These interests vary with the nature or characteristics of the object, which is at the center of the web. The object's specific characteristics matter both legally and socially. The article identifies 15 different legally relevant categories of object characteristics, as well as 9 strands of connection in the web's relationships.

The "web of interests" metaphor is built upon emerging environmental, personhood, and expectations theories of property, as well as empirical observation of both judicial and social practice. The article examines several areas of property law in light of the insights gained from this new metaphor, including: 1) regulatory takings and land use; 2) nature-oriented limitations inherent in land and water rights (e.g., public trust doctrine, natural use doctrine, nuisance doctrine); 3) property interests in wildlife and wildlife habitat; 4) property interests in corporations; and 5) the right to exclude and expressive use.

property, bundle of sticks, bundle of rights, web of interests, land use, regulatory takings, environment, nature, public trust, natural use, nuisance, land, water, environment, wildlife, corporations, right to exclude, land ethics, object, object characteristics, social relationships, real property

Abstract:
Land conservation serves a critical function of protecting watershed health and integrity, which are necessary for healthy natural environments, human life, economic activity, and society. This article describes the various impacts of land use on water quality and watersheds.

Having documented land development's growing degradation of watershed functions, the article examines four methods of protecting water quality through land conservation. These four methods are land use planning and regulation, public land management, private land conservation, and changes in land-use behaviors and values. Analysis of legal tools and limits is supported by a case study of the Anacostia River watershed, one of the most degraded watersheds in the U.S. yet recently the object of diverse and substantial efforts to restore its waterways and manage land development practices.

The article concludes that no single method of land conservation is adequate to protect watersheds. Instead, a policy of policy diversity -- a polycentric model of land conservation and watershed protection -- will maximize changes towards more environmentally responsible land use practices. While the article is likely to be of interest to specialists in land use, property, environmental, and natural resources law and public policy, it can serve as a useful means of introducing students, policy makers, or members of the public to the varieties of land conservation methods or to the relationship between land use and water quality.

land use, conservation, planning, watershed, water, water quality, conservation easement, land trust, public lands, ecosystems, ecosystem services, environmental ethics, environmental responsibility

Abstract:
This article examines 3 aspects of water privatization in the United States: 1) the privatization of public water services and systems; 2) the dominance of private property rights in water amid a complex legal regime of mixed public and private characteristics of water; and 3) the cultural framing of water as a consumer commodity. These trends raise significant human rights issues, not unlike global debates over human rights to water, and also critical national security issues related to conflict and scarcity, foreign control over domestic water supplies, and vulnerability to terrorism. More importantly, though, the article critiques the sustainability of the privatization and commodification of water in terms of the ecological, temporal, geographic, socio-ethical, policy, and economic integrity and sustainability of waters and watersheds.

The article concludes that human rights legal theories lack the capacity to resolve concerns about meeting the human need for water. Likewise, national security policies are too limited to address larger issues of long-term water governance to ensure secure, stable, and sustainable water supplies for the public.

The article proposes an alternative concept: public stewardship of water. This concept is based on the public ownership and control of water (i.e., the state ownership doctrine), subject to private property interests in water that are usufructuary in nature and regulated by the government for the public interest. These property interests in water should be seen as part of a "web of interests" defined by the unique and multi-faceted characteristics of water, including its role in sustaining all life. However, the government should be held to 6 fiduciary duties with respect to all water resources, moving beyond the traditional public trust doctrine: 1) the duty of security; 2) the duty of conservation; 3) the duty of sustainability; 4) the duty of equity; 5) the duty of investment; and 6) the duty of long-range, place-based planning. All stakeholders, including the public, should share in the government's responsibility for acting on these duties.

water, privatization, property, commodification, watersheds, human rights, national security, public rights, stewardship, fiduciary, public utilities, sustainability, environment, ecology, equity, public trust, state ownership, usufructuary, conservation

Abstract:
This article makes a case for teaching property law - or any area of the law - from the perspective of modern pragmatism, using teaching methods that promote active learning. In particular, a problem method of pedagogy that focuses on the practical utility of legal principles and the jurisprudentially pragmatic foundations of law is best suited to the features of law student learning, as we have come to understand from both theory and empirical research on adult learning. These features include active learning, learning in context, students' practical goals, professional respect, diversity of learning styles, and expectations-oriented learning. The article demonstrates how the contextualism and instrumentalism of modern legal pragmatism can be combined with the characteristics of the problem method of teaching to maximize law student learning. The analysis is presented in the context of a book review of Rabin and Kwall, Fundamentals of Modern Real Property Law, 3rd edition, a book that uses both the problem method and a modern pragmatic perspective on property law.

property, pedagogy, problem method, adult learning, law student learning, modern pragmatism, problem solving, legal education, contextualism, instrumentalism, casebook review

Abstract:
This article articulates a land use planning perspective on environmental justice, which is about the impacts of environmental and land use policies and practices on low-income and minority communities. In analyzing a typology of five conceptions of environmental justice (evidentiary, power/political, legal rights, environmental enforcement, and market/economic), the article identifies an underlying reactive character to environmental justice concepts and efforts. There is a need for an additional proactive, planning perspective on environmental justice, focused on the capacity of low-income neighborhoods of color to participate in decision making and to shape their local environments.

In developing the argument for a planning perspective, the article presents empirical evidence of disproportionate distributions of industrial and other intensive zoning by race and class, using analysis of zoning patterns in 31 census tracts in 7 cities. It also describes the historical failures of zoning, planning, and local infrastructure policies to protect low-income and minority neighborhoods or to treat them equally with other neighborhoods. Nonetheless, as 5 case studies illustrate, grassroots efforts in low-income and minority communities are now focusing on shaping land use plans, policies, and practices. The article analyzes a variety of land use regulatory mechanisms that can be used to seek environmental justice, including planning, zoning amendments, several flexible zoning techniques, and exactions. It concludes with an analysis of limits to local land use regulations as environmental justice tools, including private property rights protections, state preemption, and politics.

environmental justice, land use, zoning, planning, racism, civil rights, environmental enforcement, localism, civic capacity, industrial zoning, brownfields, empirical study, private property rights, equity