A Prospective Look at Property Rights and Environmental Regulation

33 Pages Posted: 5 Dec 2012

See all articles by Steven Eagle

Steven Eagle

George Mason University - Antonin Scalia Law School, Faculty

Date Written: December 3, 2012


This Article considers the future interaction of environmental regulation and private property rights, with an emphasis on climate change issues. It concludes that environmental issues not satisfactorily resolved at the federal level will lead to more state and local regulation that impinges on traditional understandings of property. Given the uncertainty associated with detrimental environmental outcomes, and the trend towards more proactive sub-national land use controls, more micromanagement of property will result. Since many environmental issues, notably climate change, are trans-national or worldwide in effect, suboptimal results might be expected. Furthermore, increased sub-national efforts to regulate the environment will clash with private property rights. Inevitably, some ostensible environmental regulations will seek to further other public and private agendas.

Part I examines the difficulty in defining “environment” and “property rights,” especially in the context of future generations. Part II focuses on the importance of private property in future environmental regulation, and examines the lack of standards protecting individuals from regulatory takings, and negative impacts for consumers. Part III considers the problematic implementation of “smart growth” regulations, the use of development exactions, and the potential for rent seeking and abuse in the redevelopment context.

Keywords: cap, carbon taxes, Edmund Burke, Elinor Ostrom, federalism, fracking, greenhouse gas emissions, hydraulic fracturing, Kyoto Protocol, legal centralism, Mankiw, natural resources, planning, precautionary principle, Robert Ellickson, subsidiarity, trade, United Nations Framework, zoning convention

JEL Classification: D90, H77, K11, K32, O13, O21, P21, Q15, Q28, Q38, Q48, R14, R38, R52, R58

Suggested Citation

Eagle, Steven, A Prospective Look at Property Rights and Environmental Regulation (December 3, 2012). George Mason Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 12-80. Available at SSRN: https://ssrn.com/abstract=2184549

Steven Eagle (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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