Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA – Note by Ha Chung

Note | Environmental Law
Moving CEQA Away from Judicial Enforcement: Proposal for a Dedicated CEQA Agency to Address Exclusionary Use of CEQA 
by Ha Chung*

From Vol. 93, No. 2 (January 2020)
93 S. Cal. L. Rev. 307 (2020)

Keywords: California Environmental Quality Act, Environmental Review Requirement

Although CEQA plays an important role in protecting communities from significant adverse environmental impacts, its self-executing nature allows it also to be used as a tool to halt or impede development for the wrong reasons. While many CEQA disputes are based on legitimate environmental concerns, CEQA litigation is also used to prevent development for discriminatory or nonenvironmental reasons. CEQA litigation is an attractive vehicle for this purpose due to overly broad standing requirements, unpredictable judicial results, extreme remedies, and attorney’s fees awards. Projects impeded by CEQA litigation include multifamily residential projects, homeless housing, health clinics, youth centers, and a multitude of other quasi-public uses. Since CEQA lacks uniform standards, local governments and developers must resort to costly overcompliance and guess work when confronted with the threat of litigation. To remedy the problem of CEQA abuse and unpredictability, this Note proposes moving away from judicial enforcement of CEQA and creating a state or regional agency dedicated to regulation, enforcement, and adjudication of CEQA.

Part I of this Note reviews CEQA processes, the history of exclusionary and discriminatory land use policies, and evidence of CEQA’s misuse for discriminatory and nonenvironmental reasons. Part II of this Note explores why CEQA is such an attractive tool for people to oppose development projects for exclusionary or nonenvironmental reasons and concludes that the judicial system is unsuitable for primarily enforcing CEQA. Part III proposes a dedicated agency that would handle adjudication, enforcement, and legislation under CEQA and discusses how the agency may fit into the broader environmental review process.

*. Senior Submissions Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.S. Environmental Science 2014, University of California, Los Angeles. I would like to thank Professor Robert H. Freilich for valuable guidance and feedback on earlier drafts of this note. In addition I would like to thank the staff and editors of the Southern California Law Review for their excellent work.

View Full PDF

The Climate Crisis Is a Human Security, Not a National Security, Issue – Postscript (Comment) by Maryam Jamshidi

Postscript | Environmental Law
The Climate Crisis Is a Human Security,
Not a National Security, Issue

by Maryam Jamshidi*

Vol. 93, Postscript (November 2019)
93 S. Cal. L. Rev. Postscript 36 (2019)

Keywords: Climate Change, National Security

Climate change is one of the first issues in recent memory for which there has been public debate about treating a pressing matter as a national security concern. As recently as the September 20, 2019 Climate Strike in New York City, for example, activist Greta Thunberg described the climate crisis as an “emergency.[1] Like much of the grassroots rhetoric on climate change, her demand gestures toward the sort of existential threat national security is designed to address. It is but one amongst a host of good reasons for treating the climate crisis as a security concern. Indeed, in the past, the U.S. government appeared to have recognized this and treated climate change as a national security issue as a result.[2] There were and continue to be equally good reasons, however, to worry about applying the national security label to climate change, which have largely been absent from public debate. These reasons include various threats to liberal democracy endemic to the national security sector, such as broadening and bolstering executive authority, reducing government transparency, increasing government secrecy, eroding civil liberties, and marginalizing disadvantaged groups. They also include the limited effectiveness of traditional national security solutions, which  emphasize military-oriented strategies that adapt to rather than tackle the underlying causes of climate change.

This Article articulates the downsides to treating climate change as a national security issue and demonstrates how the U.N.-mandated concept of “human security” provides a more effective framework. Human security realizes the benefits of securitization while lessening its costs. It does so by focusing on people, rather than the state, and emphasizing sustainable development policies necessary to mitigate, rather than just acclimate to, climate change.[3] While explored here in detail, these arguments are part of a larger, ongoing project examining how the human security paradigm can generate more effective legal solutions than a national security framework for global challenges, like climate change.

Part I of this Article briefly examines calls to treat climate change as a national security issue, specifically from within the grassroots climate change movement, and canvasses the benefits of doing so. Part II explores the downsides to securitizing climate change and demonstrates how a human security approach resolves these concerns. Overall, this Article accepts the view that a security-oriented attitude towards climate change is vital to meaningful action on the issue. It takes the position, however, that this approach must both align with liberal democratic values and facilitate solutions for mitigating the climate crisis. These changes to the prevailing security paradigm are unlikely to come from the state itself, which is invested in maintaining a state-centered view of security. It must, instead, be led by civil societyparticularly the climate change movement, which has the most incentive to take action on these issues.

I.  Climate Change as a National Security Issue

Over the last decade, various citizen-led groups, including 350.org, the Sunrise Movement, and the Extinction Rebellion, have drawn attention to climate change and focused on pushing corporations, governments, and intergovernmental institutions to act on the issue.[4] In raising the alarm bells, these and other groups have often used the crisis, war-framing rhetoric associated with the national security sector. Though they have not specifically invoked the term “national security,” various climate campaigners, like Bill McKibben and Naomi Klein, have described climate change as an extreme crisis requiring immediate action.[5] Other members of the climate movement have more explicitly aligned themselves with a national security framework. In 2015, the Sunrise Movement’s Twitter account tweeted: “‘The Pentagon says that #climate change poses immediate risks to our national security. We should act like it. #WaronClimateChange . . . .”[6] The 350.org website has applauded the U.S. military’s decision to securitize climate change and pushed for other government branches to do the same.[7] Still, other groups have urged application of particular national security laws and policies to climate change. The Youth Climate Strike organization has, for example, called for a national emergency declaration on the climate crisis.[8]

Both a normative and practical logic supports these demands. Most obviously, a national security approach is appropriate given the scope of the problem and the resources required to address it. According to an October 2018 report from the U.N.’s Intergovernmental Panel on Climate Change (IPCC), the impact of 2.7 degrees Fahrenheit of warming, which could be reached in as little as 10 years,[9] would lead to rises in sea levels, increases in ocean acidification, species loss and extinction, pervasive drought in some regions, and heavy precipitation in others.[10] The report predicts increased warming will erode human health, contribute to poverty, exacerbate food and water shortages, and negatively impact global economic growth.[11] To address these issues, “pathways limiting global warming to 1.5°C with no or limited overshoot . . . require rapid and far-reaching transitions in energy, land, urban, and infrastructure . . . . These system transitions are unprecedented in terms of scale . . . .”[12]

Treating climate change as a national security matter also creates legal opportunities for streamlining government responses. Among other things, it expands presidential authority to plan and invest in climate change adaptation within the United States, specifically at military installations.[13] More broadly, it gives the president latitude to respond to overseas humanitarian crises created by climate change, organize the military to deal with future climate threats abroad, and enter into sole executive agreements, like the 2015 Paris Agreement, that Congress is unlikely to ratify for partisan reasons.[14]

Finally, focusing on the national security dimensions of climate change may yield support from those holding stronger feelings about national security than the environment.[15] As scholars have argued, one of the most effective ways of generating attention is to describe an issue in national security terms; this often leads to increased “public focus, institutional power, and mobilization of resources . . . .[16]

Despite the good reasons for treating climate change as a security issue, the conventional national security frame also has a number of downsides, including various threats to liberal democracy and conceptual presumptions about the best strategies for addressing the climate crisis. Human security can help mitigate these failings by placing people, instead of the state, at the center of climate initiatives, as discussed in the next section.

II.  Securitizing Climate Change: Mitigating Costs through Human Security

When it comes to national security’s downsides, the erosion of democratic principles tops the list. Generally, over the last seventy years, national security has become synonymous with increased executive branch power, and diminished judicial and Congressional authority, all of which has harmed American democracy and the rule of law.[17] It has led to pervasive government secrecy;[18] the creation of secret evidence, secret law, and secret courts;[19] increased militarization of domestic government activities, including law enforcement;[20] and substantial restrictions on human and civil rights that have had adverse consequences for minority and immigrant communities. The government’s recent climate change policy, which has been defined by a national security framework, has been shaped by these trends. It has been almost exclusively dominated by intelligence gathering and various military initiatives dealing with climate-related issues.[21] In fact, in responding to recent natural disasters caused by climate change,[22] federal and state governments have relied on secrecy and militarized strategies,[23] which have had negative effects on marginalized communities. After Hurricane Katrina in 2005, for example, various government officials depicted minority black and brown communities as the enemy, used this rhetoric to justify government failures to meet their needs, and kept secret information vital to these communities in exercising their rights.[24]

On top of these democratic downsides, a traditional national security approach also exacerbates the disparities created by climate change. The concept of national security developed in response to national threats, like nuclear weapons, that had roughly the same impact on all people. Climate change, by contrast, has and will continue to have disparate impacts on different populations.[25] In particular, within the United States, climate change will have some effect on all regions,[26] but is expected to have the most negative consequences for poor and minority populations.[27] With its emphasis on the nation as a whole, as opposed to individual communities, a conventional national security framework is unlikely to address these differential costs.

Finally, national security places conceptual limitations on addressing climate change. Most solutions to national security problems prominently feature a militarized or military-focused approach. These strategies are less suited to the global coordination, as well as social, economic, and political transformations, necessary to mitigate climate change. When it comes to tackling the crisis, a mix of policies relating to human well-being, economic development, and environmental protection must be adopted by all states.[28] A predominantly military approach is more likely to emphasize armed conflict and the security of military installations over these development-oriented policies.[29] In particular, a national security framing increases the chances military force, not diplomacy, will be used against countries that are recalcitrant in addressing the climate crisis[30]a result that undermines, rather than bolsters, coordination between states.

The concept of human security avoids these disadvantages while preserving the benefits of securitizing climate change. Initially articulated by the U.N. in 1994, human security has two main components.[31] First, it requires that states protect people from chronic dangers, like hunger, disease, oppression, and environmental degradation.[32] Second, it demands that governments work to reduce substantial disruptions to people’s daily lives.[33] This “durable” approach emphasizes the inter-relationship between various components of security, including economic, food, health, environmental, personal, community, and political security.[34] A human security framework places the onus on governments to work towards achieving all these elements of security.[35] This obligation extends to meeting the human security needs of the international community, more broadly.[36]

Rather than blunting the benefits of a security frame, human security strengthens them by connecting security directly to people’s survival and flourishing. As a result, a human security paradigm is likely to sustain and even increase public attention to security-related issues, as well as the institutional focus and resources that come with it. It also rectifies national security’s many shortcomings. This includes challenging assumptions that security is best and most effectively achieved through unilateral executive action. Of course, human security does not entirely prohibit these sorts of activities, which are reflected in various laws facilitating presidential engagement on climate change. Nevertheless, it challenges assumptions that the president should always have exclusive authority over national security matters. It suggests, instead, that security is something inter-governmental and non-governmental organizations, as well as grassroots civil society actors, social movements, and influential individuals, have a role in creating and sustaining.[37] To facilitate this public involvement in national security decisionmaking, human security privileges government transparency over secrecy.

Significantly, human security can help mitigate national security’s civil and human rights problems. In the national security context, derogations from these rights are often considered permissible for security’s sake.[38] At times, governments have even used national security to justify emergency measures typically disallowed in liberal democracies because of their threat to individual liberty.[39] Under a human security approach, by contrast, human and civil rights are paramount.[40] Focusing on the rights of people, both as the objects and providers of security, challenges the notion that states of emergency and other suspensions of liberal, democratic norms are the best or only way of achieving security.[41]

As for national security’s strategic limitations, a human security approach yields three distinct benefits. First, unlike national security, human security de-emphasizes military strategies and emphasizes investment in development initiatives. In particular, it promotes reductions in military budgets and reallocation of funds to development work. Though human development and security are distinct, poverty and social inequality undermine the physical, material, and political wellbeing of individuals.[42] In many countries, like the United States, military spending eats up resources necessary to tackling these pressing issues.[43] By linking security to sustainable development, rather than to the military’s might, human security points dollars toward the former.[44]

Second, human security facilitates the integrated, interstate solutions necessary to address climate change. When it comes to tackling the climate crisis, experts agree that richer states must shoulder more of the economic burden and provide a range of support to poorer states.[45] Domestically, a similar redistribution of resources is necessary to realize environmental justice and ensure the most vulnerable are protected from climate change.[46] These cooperative strategies are precisely the sort of activities supported by human security, which emphasizes the connections between people and their responsibilities to one another.

Third, human security’s people-centered approach provides a basis not only for top-down, but also bottom-up approaches to climate change.[47] Addressing climate change requires both government regulation and decentralized action by citizens. As Naomi Klein has argued,

[t]here is a clear and essential role for national plans and policiesto set overall emission targets that keep each country safely within its carbon budget . . . . But if these transitions are to happen as quickly as required, then the best way to win widespread buy-in is for the actual implementation of a great many of the plans to be as decentralized as possible.[48]

Of course, to be meaningful, a human security approach to climate change must be reflected in government policy. Even with a change of administration, achieving that goal will require overcoming multiple challenges. They include confronting intra-government actors invested in taking a military-first approach to climate change; building substantial political will within government to take public demands about climate change’s securitization seriously; and ensuring those demands remain rooted in a cosmopolitan notion of human security, rather than a nationalistic or nativist one.

The first step, however, is to understand how human security leads to better outcomes than a traditional national security framework, both for democracy, as well as for efforts to solve the climate crisis. The climate change movement would be well-served to prioritize this issue sooner rather than laterlest its calls to treat climate change as a serious security threat are accepted and government policies are adopted that do more harm than good.

 


     [*]. Assistant Professor of Law, University of Florida Levin College of Law. For helpful comments and conversations, I am grateful to Sarah Bishop, Seth Endo, Anastacia Greene, Andrew Hammond, J. Benton Heath, Merritt McAlister, Paul McGovern, Mark Nevitt, Aziz Rana, Andrew Winden, and Ehsan Zaffar. Thank you to the editors at the Southern California Law Review for their thoughtful review of this piece. All errors are my own.

 [1]. Kalhan Rosenblatt, Teen Climate Activist Greta Thunberg Delivers Scathing Speech at U.N., NBC News (Sept. 23, 2019, 9:28 AM), https://www.nbcnews.com/news/world/teen-climate-activist-greta-thunberg-delivers-scathing-speech-u-n-n1057621 [https://perma.cc/975U-JWFB].

 [2]. Mark P. Nevitt, The Commander in Chief’s Authority to Combat Climate Change, 37 Cardozo L. Rev. 437, 443–44 (2015). The administration of President Donald Trump has moved away from treating climate change as a national security issue. Michael T. Klare, The Surprising Ally in Fighting Global Warming, Daily Beast (Sept. 21, 2019, 5:07 AM), https://www.thedailybeast.com/the-surprising-ally-in-fighting-global-warming-the-pentagon [https://perma.cc/N67W-LM6G].

 [3]. While some have advocated for treating climate change as a human security issue, they have not considered competing arguments in favor of a national security framing. See, e.g., Karen O’Brien, Asuncion Lear St. Clair, & Berit Kristoffersen, The Framing of Climate Change: Why It Matters, in Climate Change, Ethics, and Human Security 3, 4 (Karen O’Brien et al. eds., 2010). In particular, they have failed to consider the costs and benefits of each approach, a gap which this Essay attempts to fill.

 [4]. “Falter”: In New Book, Bill McKibben Asks If the Human Game Has Begun to Play Itself Out, Democracy Now! (Apr. 15, 2019), https://www.democracynow.org/shows/2019/4/15 [https://perma.
cc/8GRE-6PH5].

 [5]. A Natural Solution to the Climate Disaster, The Guardian, (Apr. 3, 2019, 1:00 AM), https://www.theguardian.com/environment/2019/apr/03/a-natural-solution-to-the-climate-disaster [https://perma.cc/7SVZ-S3LW].

 [6]. Sunrise Movement (@sunrisemvmt), Twitter (Jan. 20, 2015, 6:55 PM), https://twitter.com/
sunrisemvmt/status/557733287649882112 [https://perma.cc/97QG-CXH7].

 [7]. Anna Goldstein, Climate Change and National Security: The Low Down on the National Security Strategy, 350.org (Dec. 21, 2017), https://350.org/climate-change-national-security-the-low-down-on-the-national-security-strategy [https://perma.cc/97SZ-BMPP].

 [8]. Youth Climate Strike, Action Network, https://actionnetwork.org/event_campaigns/youth-climate-strike [https://perma.cc/57MG-S4T5].

 [9]. Intergovernmental Panel on Climate Change, Global Warming of 1.5°C, Summary for Policymakers 6 (2018), https://www.ipcc.ch/site/assets/uploads/sites/2/2019/05/SR15_
SPM_version_report_LR.pdf [https://perma.cc/8SVL-QTKB] [hereinafter 2018 IPCC Report].

 [10]. Id. at 9–11.

 [11]. Id.

 [12]. Id. at 17.

 [13]. Nevitt, supra note 2, at 473–76.

 [14]. Id. at 477–83, 499–502.

 [15]. Sarah E. Light, Valuing National Security: Climate Change, the Military, and Society, 61 UCLA L. Rev. 1772, 1778 (2014).

 [16]. Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1705 (2011).

 [17]. David Rudenstein, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order 7 (2016).

 [18]. Neal Kumar Katyal, Internal Separation of Powers: Checking Today’s Most Dangerous Branch From Within, 115 Yale L.J. 2314, 2319 (2006).

 [19]. Rudenstein, supra note 17, at 7–8.

 [20]. Lisa Grow Sun & RonNell Anderson Jones, Disaggregating Disasters, 60 UCLA L. Rev. 884, 917–18 (2013).

 [21]. U.S. Dep’t of Defense, 2014 Climate Change Adaptation Roadmap (2014), http://ppec.
asme.org/wp-content/uploads/2014/10/CCARprint.pdf [http://web.archive.org/web/20170127042339/
http:/ppec.asme.org/wp-content/uploads/2014/10/CCARprint.pdf]; Sarah E. Light, The Military-Environmental Complex, 55 B.C. L. Rev. 879, 881, 906 (2014);

 [22]. Amina Khan, Fires, Droughts and Hurricanes: What’s the Link Between Climate Change and Natural Disasters?, LA Times (Dec. 5, 2017, 11:25 AM), https://www.latimes.com/science/sciencenow/
la-sci-sn-climate-change-natural-disasters-20170907-htmlstory.html [https://perma.cc/ZS6F-XFMY].

 [23]. Sun & Jones, supra note 20, at 886–87.

 [24]. Id. at 942.

 [25]. 2018 IPCC Report, supra note 9, at 20; David Wallace Wells, The Uninhabitable Earth: Life After Warming 132 (2019); Michelle Melton, Climate Change and National Security, Part II: How Big a Threat Is the Climate?, Lawfare (Jan. 7, 2019, 12:45 PM), https://www.lawfare
blog.com/climate-change-and-national-security-part-ii-how-big-threat-climate [https://perma.cc/J2FC-NJKS].

 [26]. Leah Burrows, From Sea to Rising Sea: Climate Change in America, Harv. U. Ctr. for Env’t (Sept. 19, 2017), https://environment.harvard.edu/news/faculty-news/sea-rising-sea-climate-change-america [https://perma.cc/5EK5-TM2C].

 [27]. Douglas Fisher, Climate Change Hits Poor Hardest in U.S., Sci. Am. (May 29, 2009), https://www.scientificamerican.com/article/climate-change-hits-poor-hardest [https://perma.cc/QTE4-VE7L].

 [28]. 2018 IPCC Report, supra note 9, at 20.

 [29]. Donald Wallace, Introduction: Security and Global Climate Change, in Climate Change, Policy and Security: State and Human Impacts 1, 10–11 (Donald Wallace & Daniel Silander eds., 2018).

 [30]. Id. at 25–26.

 [31]. United Nations Dev. Programme, Human Development Report 1994, at 22 (1994), http://hdr.undp.org/sites/default/files/reports/255/hdr_1994_en_complete_nostats.pdf [https://perma.cc/
9Z3J-FUJK] [hereinafter Human Development Report 1994].

 [32]. Id. at 23.

 [33]. Id.

 [34]. Id. at 24–25.

 [35]. Giorgio Shani, Introduction: Protecting Human Security in a Post 9/11 World, in Protecting Human Security in a Post 9/11 World 1, 6-7 (Giorgio Shani et al. eds., 2007).

 [36]. Rep. of the High-Level Panel on Threats, Challenges & Change, A More Secure World: Our Shared Responsibility, U.N. Doc. A/59/565, at 21–22 (Dec. 2, 2004).

 [37]. David Andersen-Rodgers & Kerry F. Crawford, Human Security 15–16, 44–49 (2018).

 [38]. Id. at 41–42.

 [39]. Wallace, supra note 29, at 6.

 [40]. Andersen-Rodgers & Crawford, supra note 37, at 83.

 [41]. See id. at 21–30.

 [42]. Human Development Report 1994, supra note 31, at 22.

 [43]. Id. at 50.

 [44]. Id. at 58–60.

 [45]. Larry Elliott, Do More to Help Poor Nations Cope with Climate Change, IMF Tells Rich Countries, The Guardian (Sept. 28, 2017, 1:49 AM), https://www.theguardian.com/business/2017/
sep/27/do-more-to-help-poor-nations-cope-with-climate-change-imf-tells-rich-countries [https://perma.
cc/4TXK-8P8G].

 [46]. Environmental justice focuses on addressing inequalities created by environmental protection efforts in low-income and minority communities. James M. Van Nostrand, Energy and Environmental Justice: How States Can Integrate Environmental Justice into Energy-Related Proceedings, 61 Cath. U. L. Rev. 701, 702 (2014).

 [47]. Yoichi Mine, Downside Risks and Human Security, in Protecting Human Security in a Post 9/11 World, supra note 35, at 64, 67.

 [48]. Naomi Klein, This Changes Everything: Capitalism vs. the Climate 133 (2014).

Divergence in Land Use Regulations and Property Rights – Article by Christopher Serkin

From Volume 92, Number 4 (May2019)
DOWNLOAD PDF


 

Divergence in Land Use Regulations and Property Rights

Christopher Serkin[*]

INTRODUCTION

For the past century, property rights—and in particular development rights—have been circumscribed and largely defined by comprehensive local land use regulations. As any student of land use knows, zoning across the country shares a common DNA. Despite their local character, zoning limits on development rights in almost every American jurisdiction share a deep family resemblance borne from their common origin in the Standard Zoning Enabling Act (SZEA). Zoning for much of the twentieth century therefore converged around a core goal of separating incompatible uses of land as a kind of ex ante nuisance prevention.[1] Of course, zoning went much farther than the common law of nuisance, but its animating justification was to minimize the externalized impacts of certain kinds of intensive development.

For decades, zoning created a relatively stable and predictable system defining development rights and also neighbors’ expectations about what could be built nearby. While municipalities innovated on the margins, the shared approach meant that developers could easily assess the developable envelope and permissible uses for any property, and many became sophisticated at navigating local zoning ordinances to maximize development potential. This also resulted in equally stable political dynamics. By and large, developers and conservative property rights advocates were allies in opposing restrictive zoning, while community groups and pro-regulation liberals advocated for zoning to protect community character, in-place residents, and the environment.[2]

More recently, however, zoning has been changing. Even first principles are up for grabs, and land use regulations increasingly diverge from each other. Some municipalities today deploy zoning as a framework for bargaining with developers.[3] Others focus on sustainable development, housing affordability, community preservation, and many other goals.[4] The proliferation of new zoning goals means that property and development rights may now be strikingly different between jurisdictions. This is a period of increasing divergence in the substantive content of development rights across municipalities.

This trend towards divergence in land use regulations has not, however, resulted in the wholesale jettisoning of traditional approaches to zoning and land use regulation. In fact, while the goals may increasingly diverge, zoning’s fundamental tools remain fairly consistent. Instead of wholesale divergence in zoning and development rights, what we are actually witnessing more closely resembles multimodal convergence, where zoning regimes coalesce around multiple points instead of a single goal.[5]

The question here is whether this divergence is beneficial on balance. Any divergence has its costs, primarily in the form of increased information costs for property owners and the deadweight costs of increased special interest group rent seeking. But it comes with benefits, too, as diversity in land use goals allows consumers to select their preferred set of property rights. Too little divergence and people are locked into regimes they may not want. Too much and information costs may grow too high.

Increasing divergence—or multimodal convergence—also explains some of the new political fights around zoning and property rights. Traditional conservative and liberal positions have become unsettled as progressives have increasingly blamed zoning for the affordability crisis in many cities.[6] Some liberal groups, however, continue to embrace restrictive zoning because they prioritize environmental or community-preservation concerns or favor mandatory inclusionary zoning as a better response to affordability.[7] Simultaneously, conservative suburbs that had previously rejected land use regulations in favor of a pro-growth agenda have had second thoughts and are deploying strict new limits on development partly to constrain the burden on congestible infrastructure like roads.[8] In short, restrictive zoning and strong property rights are no longer at opposite ends of a single spectrum. Making sense of zoning’s new landscape requires grouping land use regulations as focusing primarily on one of several different possible goals. These include, among others, affordability, environmental protection, aesthetics, historic preservation, community protection, fiscal concerns, and more invidious exclusion. Sometimes these are competing goals, and sometimes they are simply orthogonal to each other. This Article identifies the range of goals that local governments today pursue through zoning and then examines the costs and benefits of this new zoning reality.

I.  Zoning’s Common Origin

In our fragmented and diverse political system, the consistency of land use regulations between municipalities may seem surprising. In fact, however, zoning everywhere in the United States shares a common—and familiar—origin in the Standard Zoning Enabling Act (SZEA).[9] Promulgated in 1926 by the Department of Commerce, the SZEA was designed as model legislation for states to adopt that would empower local governments to enact comprehensive zoning and land use regulations.[10] The approach was a success. Following a tacit blessing by the Supreme Court in Village of Euclid v. Ambler Realty Co.,[11] almost every state in the country adopted some version of the SZEA within the ensuing decades, and zoning became ubiquitous.[12]

From that origin story comes a common set of concerns that zoning was meant to address. Zoning has long been seen as a kind of ex ante nuisance prevention.[13] It separated incompatible uses of land before they arose, keeping factories out of residential neighborhoods during the urbanization and industrialization of the early twentieth century.[14] And it protected singlefamily homes from more intensive uses, in effect stratifying much of the country into single-use zones. This had a pernicious underbelly, reinforcing divisions based on class and on race, keeping apartment buildings and other forms of multifamily housing out of more affluent single-family zones.[15] Indeed, this is zoning’s original sin.[16] But this is also the fundamental justification that the Supreme Court endorsed in Euclid.[17]

Political fights emerged quickly. The mainstream arguments were not over the project of zoning, but instead over its implementation. Few people objected to the idea of using regulations to separate genuinely incompatible land uses. Indeed, the regulatory goal of minimizing externalities was consonant with both liberal and conservative convictions. But zoning’s contours have been contested now for a long time. By and large, conservatives objected to regulatory restrictions on property rights and so have advocated for limited zoning that separates only the most conflicting uses. Others on the right have advocated for even more extreme regulatory minimalism, relying on private land use controls instead of zoning and invoking covenants and homeowners’ associations as remedies for regulatory overreach.[18] Liberals, on the other hand, embraced zoning. They were willing to take a more capacious view of the harms of neighboring uses and so promoted increasingly fine-grained land use regulations.[19] The conventional understanding of attitudes towards zoning could therefore be presented along a simple spectrum from anti-regulation to pro-regulation.[20] Slowly over time, local governments moved beyond these narrow goals. Today, the underlying goals of many land use regulations have nothing to do with ex ante nuisance controls.

II.  Divergence in the Purposes of Land Use Regulation

Local governments have become increasingly creative about pursuing a variety of municipal goals through land use regulations, and zoning has become concomitantly more nuanced and sophisticated. The result is a more complex regulatory apparatus that owners must navigate to develop property in many jurisdictions. It has also resulted in widening fissures in the political fights over zoning. Although not always noticed, even by local officials and developers let alone by courts and scholars, the presumptive conservative opposition to land use regulations and liberal support has, in many cases, flipped.[21] Odd political alliances dot the landscape of local land use disputes, with—for example—affordable housing advocates working alongside for-profit developers to resist restrictive zoning ordinances.

From a distance, the divergence in local uses of zoning creates what appears to be real instability. When the dispute over zoning was framed simply in terms of more versus less regulation, the stakes were predictable and relatively clear. But now with governments pursuing many different goals in their land use regulations—with apparent divergence in the purposes of zoning—this area of law appears quite chaotic.

Municipal land use regulations no longer converge around the central organizing goal of minimizing conflicting uses of property (if they ever truly did). This is not, however, a story of entirely disorganized divergence. The proliferation of goals still relies for the most part on conventional zoning tools, even if these tools are deployed somewhat differently. What one therefore observes, looking carefully, is multimodal convergence in land use controls. And identifying those various points of convergence can go a long way to discerning patterns in—and understanding the political stakes of—zoning fights wherever they occur. The first step, however, is to survey the many goals that land use regulations today can serve and how local governments tend to pursue them.

Many of the specific objectives are by now familiar. Scholars already distinguish between growth machine and homevoter jurisdictions.[22] Advocates for sustainable development clash with NIMBYs (Not in My Backyard) and BANANAs (Build Absolutely Nothing Anywhere Near Anything”) and are joined by California’s new YIMBYs (Yes in My Backyard”).[23] It is easy to observe these fights on the ground and to see how much jurisdictions can diverge in their land use priorities. But instead of seeing these as one-off battles or through the realpolitik lens of interest-group conflicts, it is worth stepping back and canvassing the range of goals that local governments today pursue through their land use regulations.

Looking broadly, modern land use regulations often represent an effort to pursue one or more of the following goals. These are not mutually exclusive. Some are congruent with each other, but others are in inextricable tension. Many implicate a voluminous academic literature. They are presented here in only their most cursory outlines. The value of this Article is not in the exhaustive explication of any particular land use goal but instead in a broad survey of many of them together to identify the resulting content of the land use regulations that each of these goals tends to produce. What begins to emerge is a sense of real divergence in the objectives that local officials pursue through land use regulations, the implementation of which nevertheless converges around a few key zoning tools.

A.  Minimizing Harms from Neighbors

Minimizing conflicting uses of property is the original justification for zoning, and conventional land use tools are well-suited to this goal by separating residential, commercial, and industrial uses. Debates persist over what counts as incompatibility and what sorts of externalized harms need to be regulated.[24] Nevertheless, this overarching goal—and the resulting approach to zoning—are straightforward. Indeed, this objective continues to dominate land use regulation in many suburbs, where residents continue to protect low-intensity residential development by minimizing incursions of more intensive uses.[25]

B.  New Urbanism and Mixed Use

In many other areas, however, the traditional view of incompatible uses has broken down. People increasingly seek mixed uses and walkable neighborhoods, preferring that vibrancy to single-use residential areas.[26] New urbanism champions these land use goals.[27] New urbanists may still accept at least implicitly the goal of separating incompatible uses, but they adopt a very different view of what counts as incompatible.

New urbanist land use regulation therefore looks quite different from conventional Euclidean zoning. The regulatory regime still regulates land uses and development density, but it seeks vibrant and diverse uses instead of homogenous ones. In addition to some rigid use districts, then, it permits forms of mixed-use development.[28] Some zoning ordinances do this explicitly, predesignating certain zones for mixed use buildings.[29] Others do this through overlay districts or through special exceptions and variances.[30] The result is mixing more intensive and commercial uses with residential ones, often on arterial streets or in places located near mass transit.

C.  Encouraging Growth

Following Professors Harvey Molotch and William Fischel, land use literature has long divided municipalities into “growth machine” and “homevoter” jurisdictions.[31] The former seek to attract development and mobile capital and to encourage investments in new local developments. But this can be further subdivided into a number of different specific motivations. Most obviously, as the “growth machine” name implies, this pro-development attitude can reflect a straightforward desire to benefit the local development community. Builders, architects, realtors, lawyers, bankers, and others all have a strong financial interest in increased development activity.[32] Others favor growth for its own sake. A growing city feels dynamic and vibrant, even as it puts pressure on existing communities.[33] Still others are more instrumental, favoring growth for the increased economic activity that it sometimes produces and also for the services and amenities that size brings, whether a restaurant, professional sports team, or symphony, to name just some of the most obvious examples.[34]

Whatever the specific reason, this pro-growth agenda translates into a broad hostility to strict land use regulations. Municipalities that impose onerous regulatory hurdles are at a competitive disadvantage when it comes to attracting development and will expect to see development activity decrease, all else being equal. The resulting approach to zoning is therefore to minimize regulatory hurdles in order to encourage growth.

D.  Discouraging Growth

The opposite goal is also commonplace: discouraging growth. Just as some people seek growth for the amenities it brings, others may object because of increasing congestion or changes in municipal character that can accompany substantial new development.[35] It can also come simply from status quo bias.[36]

Again, whatever the specific motivation, the anti-growth agenda embraces zoning and land use regulations of all kinds. The clearest regulatory strategy to preserve the status quo is to erect as many regulatory hurdles as possible to prevent new development. Strict zoning requirements, including designating large areas of a municipality as effectively off-limits for development, are the most obvious techniques.[37] But adding new layers of regulation can be equally if not more effective. One study has demonstrated that every new regulation reduces building permits for multifamily units by 6%.[38] Historic preservation rules, strict subdivision ordinances, development impact fees, and so forth can also create an atmosphere hostile to development that drives growth elsewhere.

E.  Zoning for Tax Revenue

Zoning is increasingly bound up with issues of municipal finance. Sometimes this is direct, like using regulatory concessions as opportunities to raise money or develop infrastructure.[39] But more often, this is indirect, like using zoning to encourage land uses that have net positive budget impacts. Public schools, in particular, are often the largest expense for local governments and therefore drive land use decisions.[40]

While normatively controversial, local governments often seek to exclude affordable housing because low-income households generate relatively little revenue and yet place significant burdens on municipal budgets through impacts on schools and other municipal services. On the flip side, local governments seek land uses that generate substantial tax revenue while creating few costs.[41] Depending on the nature of the tax base, this often means seeking to attract high-valued homes for people with few if any school-aged children.

Traditionally, these dynamics have produced large-lot zones, limits or bans on multifamily housing, and other familiar, if troubling, forms of exclusionary zoning. By requiring housing that consumes more land per unit, a local government can reduce the amount of housing that can be built in any area and also can increase the land costs associated with housing, driving up prices. Admittedly, this dynamic has been shifting somewhat in recent years. Changing consumer preferences means that dense, mixed-use, multifamily development can sometimes be the most expensive, with new high-rise areas in cities like Nashville generating by far the most net tax revenue per square foot.[42] Nevertheless, in much of the country and especially in suburbs, the conventional wisdom still holds. Those places still deploy large lot zoning and bans on multifamily housing in order to exclude lower-income households and to attract and retain housing for the affluent.[43]

F.  Zoning for Fees

A more direct form of fiscal zoning comes from the bargaining opportunity that land use regulations can represent. Several decades ago, Professor Carol Rose demonstrated that zoning can be seen through the competing lenses of planning and dealing.[44] Under the dealing model, land use regulations should be seen as a kind of opening offer. Developers then must petition governments for more permissive regulations—like increases in density—and provide certain financial or in-kind benefits in exchange for regulatory largesse. Some people view this as a kind of graft, others simply as a way of ensuring that developers internalize more of the costs of increased density.[45] Regardless, many local governments have become increasingly sophisticated about enacting land use regulations that create a framework for bargaining.

The most familiar example is the imposition of impact fees or exactions. These are explicit mechanisms by which local governments charge developers for the burdens of new development, either through prespecified legislated fees or ad hoc bargains.[46] But other zoning approaches also create bargaining moments for local governments. For example, some local governments place large amounts of land into holding zones, typically industrial or agricultural zones where no other uses are permitted.[47] These do not reflect the municipality’s judgment about the highest and best use for the property but instead create such strict limits that anyone wanting to develop the property will have to seek a rezoning. Since property owners are rarely entitled to rezonings as of right, this gives municipalities discretion and so creates a meaningful opportunity to bargain for developer contributions to infrastructure, and so forth.

More generally, then, zoning ordinances can generate revenue either by imposing prespecified impact fees or by giving local officials discretion in land use decisionmaking. Vague zoning standards—like a requirement that development be “consistent” with existing community—allow local officials to deny land use applications.[48] This discretion therefore also allows officials to grant the applications but only upon certain concessions or contributions by the developer.

G.  Zoning to Increase Property Values

According to Professor Fischel’s leading account of suburbs and small local governments, homeowners dominate the political landscape and are primarily motivated by property values.[49] Most homeowners’ primary asset is their house, and so they are keenly interested in property values, seek policies and regulations that will increase local property values, and reward local politicians who provide them.[50]

There is no magic zoning bullet that will automatically create higher values. Instead, the relationship between zoning and property values is dynamic and depends tremendously on local context. Nevertheless, it is generally the case that restricting the supply of developable land will tend to increase property values. In fact, it amounts to a kind of transfer from new entrants who have to pay higher housing costs to in-place residents who see their property values climb.[51]

This does not always work. Sometimes, depending on elasticity in local markets, strict regulations can produce economic stagnation. If demand for housing is weak or very responsive to price, then overly restrictive zoning can be self-defeating.[52] But where demand is strong, as in many affluent and developed communities, restrictions on supply can increase property values for in-place property owners.

H.  Affordability

Not everyone benefits from rising property values. A countervailing pressure in many municipalities is the desire to encourage more affordable housing options.[53] Rents and home prices that are too high can drive out important members of the community—like teachers, government employees, artists, low-wage workers, and so forth—which can have adverse economic effects and can also deplete social capital.[54]

Local governments have a number of tools at their disposal to address housing affordability, but each comes with limitations. Obvious, but much maligned, tools include rent regulation and the provision of public housing.[55] But land use regulations can also be deployed to encourage affordable housing. Inclusionary zoning, for example, offers developers density bonuses in exchange for developing some number of affordable units or sometimes requires a number of affordable units outright as a condition for building.[56] More generally, too, simply increasing the supply of any form of new housing can also put downward pressure on price.[57] Cities today are experimenting with ways of relaxing density limits in order to increase the supply of new housing and thereby address affordability. In 2018, New York, for example, changed its off-street parking requirements for certain kinds of buildings, dramatically increasing the number of residential units that could be developed on any given lot.[58] The most extreme example is the YIMBY movement in California, which pushed for a change in 2018 that would have all but eliminated density limits on residential development anywhere near mass transit.[59] This would have unlocked an enormous amount of development potential throughout California’s cities. The measure failed, but there can be no doubt that affordability is motivating increasing political pressure.[60]

Not everyone agrees that unlocking development potential will help with affordability. Indeed, it might seem that developing high-end market rate housing would increase not decrease local housing costs. But the law of supply and demand is powerful, and even market-rate housing eases the demand for more modest existing housing elsewhere in the municipality and so puts downward pressure on price. In 2019, Professor Vicki Been et al. surveyed the economic literature and concluded that unlocking supply, even without explicit inclusionary zoning requirements, helps make housing more affordable, whereas supply restrictions drive prices up.[61] While responses remain controversial and contested, zoning for affordability involves lowering regulatory barriers, reducing development restrictions and unlocking increased development potential, or directly regulating price either through rent regulation or inclusionary zoning.

I.  Historic Preservation

Although not squarely “zoning” in many places, historic preservation can motivate local officials who seek to protect buildings or neighborhoods of historic significance. Designating property as historically significant can create a new layer of regulatory oversight. It therefore triggers a kind of additional veto right that can make it more difficult to build.[62] Historic preservation ordinances vary in their details and in their strength but generally require property owners to apply for a certificate of appropriateness when seeking to tear down or modify a structure designated as historically significant.[63]

J.  Community Preservation

More than historic preservation, community preservation motivates a significant amount of land use regulation. In fact, historic preservation is often a kind of rough proxy for the real concern of preventing displacement of the existing community. Development can threaten community in a number of different ways. Most directly, an influx of new residents can affect existing social ties and threaten existing social capital.[64] Development can simultaneously price some residents out of the neighborhood.[65] This gentrification—a perennial issue in local government and land use law[66]—creates its own winners and losers. The former includes primarily in-place property owners; the latter includes renters. Nevertheless, people concerned with preserving the existing in-place community will usually object to development that changes the character of a place.[67]

Some local governments have begun to experiment with community preservation directly, enacting community preservation ordinances that do not require a showing of historical significance but rather community significance to preserve a building.[68] Most use zoning’s blunter tools, again seeking to restrict new development by erecting regulatory hurdles. While this can sometimes prove self-defeating, creating stagnation and capital flight, community members will often take that risk in order to protect their social capital and communities. There is no doubt that concerns about the fragility of existing communities motivate a significant amount of restrictive zoning.

K.  Aesthetic Regulation

Today, in many places, the motivation for many land use regulations appears to be as much aesthetics as anything else. Neighbors are concerned about the impact of new development on the look of their neighborhood for its own sake and often oppose development primarily because they think it will be ugly.[69]

Sometimes, this concern is explicitly included in zoning ordinances by requiring architectural review.[70] Such architectural review provisions tend to create greater homogeneity in building design, often specifying a narrow list of appropriate architectural styles for any new buildings.[71] Homogeneity does not ensure beauty, of course, and can in fact create the opposite.[72] But it is a proxy for uncontroversial buildings and so minimizes aesthetic outliers.

Some jurisdictions have also turned away from traditional use-based zoning ordinances to form-based codes instead. As their name implies, these codes focus on the particular form that buildings can take—on bulk, shape, and so forth—instead of on the permitted uses. These often impose quite specific design requirements that function like de facto aesthetic regulations.[73]

L.  Environmental Protection: Sustainable Development

We have now long understood the important role that land use regulations can play in climate change.[74] Real estate development contributes significantly to carbon emissions. The sprawl associated with single-family residential suburbs is much more carbon intensive than dense development closer to people’s jobs and to commercial centers.[75]

Energy conservation is a backdrop for many discussions about new development. This can translate directly into land use regulation. Zoning that minimizes sprawl and that encourages denser development near transportation will lower carbon emissions.[76] Indeed, this is the explicit goal of sustainable development, which has generated an enormous amount of zoning activity and scholarly interest.[77] The blueprint for sustainable development remains contested, but experts broadly agree that urban living produces much less carbon than suburban and rural living. They therefore favor increasing density in the urban core while discouraging the land-consuming sprawl that has characterized development for much of the past century.[78]

M.  Environmental Protection: Animals and Habitats

A related motivation for land use regulation, especially in rural areas, is more traditional environmental protection and specifically the protection of environmental resources like wetlands. Wetland regulations are often administrated at the state level, rather than the local level.[79] Nevertheless, they function as sometimes dramatic limits on development. Other kinds of environmental regulations have a similar effect. Septic regulations can prove more restrictive than zoning in controlling density in rural areas without municipal wastewater.[80] Explicit environmental review through the National Environmental Policy Act (“NEPA”) or its state analogues also shape large-scale development.[81]

Other municipalities focus environmental efforts on wildlife habitat. The most sophisticated efforts involve taking an inventory of animal pathways and then seeking to create habitat connectivity by preventing development that interferes with those pathways.[82] Wildlife overlay districts seek to preserve critical habitat and to promote ecological health. More often, however, local governments pursue what is better characterized as aesthetic environmentalism. The goal is to promote a community character that includes vegetation, trees, open space, and a general sense of nature, regardless of the actual impact on wildlife or natural resources. Proponents often object to cookie-cutter suburbs and promote more large-lot development that preserves a more rural feel.

The result for zoning is increased restriction on development, but the location for these restrictions is motivated by a concern for natural resources and not by aesthetics, community character, and so forth.

N.  Economic Intervention

Zoning and land use controls can be an important if sometimes problematic tool for local governments to affect economic outcomes. At the most parochial level, land use regulations can be used as a kind of economic protectionism for in-place businesses by excluding competition.[83] Prohibitions on new entrants, coupled with grandfather protection for existing businesses, can create a kind of regulatory mini-monopoly. This can look like pure rent seeking or just naked economic favoritism for in-place businesses.[84] Sometimes, however, local governments can justify anti-competitive zoning on broader economic grounds. For example, some local governments have tried to use zoning and land use controls to exclude large box stores like Wal-Mart, ostensibly to preserve smaller businesses and downtown commercial areas, and the positive externalities they generate.[85]

Local governments can also use zoning to pursue specific economic goals. For example, noncumulative zoning in industrial areas is best understood as a kind of subsidy for industry by keeping property values lower for industrial land.[86] In other instances, local governments can create what amount to aspirational zones for uses they seek to attract—like New York City creating a new biomedical zone.[87] And even more broadly, local governments may use land use regulations to try to generate agglomeration surplus through a sufficient density of a particular kind of business or industry: think, here, of tech in Silicon Valley; insurance in Hartford, Connecticut; theater on Broadway; and so forth.[88] These places and industries may all have their own specific land use needs, and local governments are often especially solicitous of these industry-driven zoning requirements.[89]

O.  Exclusion and Segregation

In addition to the more-or-less principled justifications for land use regulation identified above, there are also more overtly pernicious ones that are important to acknowledge. Zoning can be used to exclude disfavored groups or businesses. This is most obvious and familiar in the context of racially motivated zoning. Although explicitly race-based zoning is clearly unconstitutional and illegal, exclusionary zoning often has a racially discriminatory impact, if not motivation. Because this can be so difficult to detect and to prove, it remains widespread.[90] For example, opposition to affordable housing or simply to less expensive multifamily housing may well be motivated for some people by racial animus.[91] The political fights over such housing are therefore often accompanied by charges of racism and can be bitter and ugly.[92]

Table 1 summarizes the different municipal goals described in this Section and the resulting implications for zoning.

 

What should be immediately apparent is the extent of convergence in the resulting approaches to zoning, even as land use objectives continue to diverge. Clearly, Table 1 obscures, through simplification, important limits on the extent of convergence. New urbanists, for example, will not favor relaxed zoning restrictions in all of the same places, or in the same way, as environmentalists. Nor are these interests mutually exclusive, even in the same person or political body. Someone can prioritize aesthetic concerns in one place and affordable housing in another in the same municipality. There is nothing inherently inconsistent in those views.

Indeed, questions of location and scale create persistent tensions in each of these approaches. Increased density in one place might increase property values but make other parts of the municipality more affordable. Local renters who might find themselves priced out of that particular neighborhood might therefore object, even though the effect of increased supply is to improve affordability.[93] Similarly, favoring density, transitoriented development, or a more urban mixed-use streetscape does not mean favoring those elements everywhere. They can conflict with concerns over historic or community preservation in particular locations in ways that are not internally inconsistent.

III.  Evaluating MultiModal Convergence

A.  The Costs and Benefits of Divergence

The diverging goals of land use regulations—and the resulting property and development rights that they circumscribe—create both costs and benefits. They also create new political alliances that can make the real stakes of zoning fights increasingly opaque. Being clear eyed about these dynamics allows for a more careful assessment of the changing landscape of land use regulations.

The most obvious cost of the proliferation of land use goals comes from the difficulty in navigating divergent regulatory regimes. When zoning codified the straightforward goal of separating incompatible uses of property, it was relatively easy for property owners and developers to anticipate ahead of time what uses would be permitted on any particular property. Comprehensive plans gave a sense of the municipality’s preferences and priorities, while the zoning ordinance prescribed broad categories of uses and densities that it would allow. A developer seeking to build new multifamily housing or a new commercial center would look for property with the right physical and regulatory characteristics to decide what land to buy and where to develop. And this process was relatively transparent.

Divergence in land use goals can obscure some of zoning’s signaling and channeling functions. Today, the content of the zoning ordinance does not necessarily reveal the municipality’s underlying purposes and goals and so can make the regulatory treatment of land more opaque. The fact that property is zoned as agricultural, for example, does not necessarily mean the municipality is hostile to development there. It might mean, instead, that local officials are open to a rezoning for a price.[94] Likewise, the fact that development will require a normally routine special use permit, or a less routine variance, does not mean a developer should expect to get it if the development will occupy land that local officials believe is important for habitat or the local officials are simply opposed to growth. In other words, divergence in the underlying purposes of land use regulations—especially in specific locations within a municipality—means that it can be difficult for property owners and developers to know ahead of time what uses will be permitted in any particular place. The contours of property rights and development potential are therefore rendered at least partially obscure.

Divergence in land use regulations creates another cost, too, in the form of special interest group rent seeking.[95] Support for—or opposition to—some land use approval can now include special interest group pressure from many different directions. Those interventions are costly themselves, but they can also create a more complex and less transparent set of choices for local officials. The results can be less effective regulations, whether judged by efficiency, by public preference, or any other metric.

There are benefits of the seeming divergence, however. Most importantly, multiplicity in land use regulations can allow people to better satisfy their individual preferences by choosing to live in a place that pursues their particular regulatory priorities. And they will not always choose to live in the place where their property rights are the most expansive. Indeed, it is quite to the contrary. While no one likes to be told what they can and cannot do on their own property, almost everyone likes being able to tell neighbors what they can do on theirs. Many people will willingly trade greater restrictions on their own land for equivalent restrictions on their neighbors. The proliferation of common interest communities, many of which are subject to much more burdensome property restrictions than any local zoning ordinance would ever impose, is proof that many people prefer this tradeoff.[96] Just as people can choose to live in a place with good public schools, or low taxes, or mass transit, or lots of open space, regulatory priorities can be important selection criteria for homeowners.

Relatedly, satisfying consumers’ regulatory preferences facilitates Tieboutean sorting.[97] This has structural benefits. Desirable regulatory regimes will be capitalized into property values, at least to some extent. That provides an important feedback mechanism for local governments seeking to satisfy consumer preferences. Where regulatory choices are limited to the binary options of “more” or “less,” price becomes an unhelpful or even perverse signal. More regulation will tend to restrict supply and so drive up prices, all else being equal. The pressure from sorting will always favor more restrictive zoning. But in a world of multimodal convergence, where local governments pursue a variety of regulatory objectives, sorting starts to generate meaningful price signals in property values. For example, the fact that many local governments have sought to brand themselves as “green” cities, partly through their land use regulations, demonstrates at least their perception of the benefits of such sorting.[98]

In theory, then, the proliferation of attitudes towards land use regulations, as well as the regulations themselves, should allow for consumers to satisfy their regulatory preferences and to purchase the bundle of property rights that they want. To the extent they are visible to outsiders—sometimes an unrealistic assumption—land use priorities allow for more efficient sorting.[99]

The tension between predictability and clarity in property rights on the one hand and satisfying diverse preferences on the other creates a meaningful limit on the goals that local governments should be able to pursue and how they pursue them. Too much divergence and information costs become too high. But too little and more people will be stuck in regimes that do not actually reflect their interests. Multimodal convergence therefore represents a surprisingly appropriate compromise between the certainty of unidimensional land use goals and more chaotic divergence. It also means that not everyone in a municipality must agree on the same goals to still be able to agree on an approach to zoning. The fact that different substantive goals can produce the same attitude towards zoning in a particular dispute means that more people can satisfy their regulatory preferences with fewer options.

This is not to say that the extent of the observed divergence that exists today is appropriate. It may be too great, and so the information costs are already too high. Or it may not be enough, and people are being forced into regulatory regimes that do not satisfy their preferences. This is, fundamentally, an empirical question, and one that would require further exploration to try to resolve. The observation here is simply that some degree of divergence is desirable, and that multimodal convergence reflects a kind of tacit compromise between an overly rigid set of land use goals and a regulatory free-for-all.

Multimodal convergence also provides a useful way of thinking about political alignments and narratives in contemporary land use fights. It explains why many land use disputes today involve such unlikely bedfellows. For example, the motives of the growth machine and affordable housing advocates may be very different, but their view of zoning may be quite consistent.[100]

These dynamics also make it more difficult to understand the “real” stakes of many land use disputes. Does opposition to multifamily housing in a particular place come from concern about habitat loss, from aesthetic preferences, or from racist opposition to the likely low-income residents who are predicted to move in? Any of those views would be consistent with a vote against the new development.

The purpose of highlighting these dynamics is not, ultimately, to favor one over another. Appropriate concerns in one place may be entirely inappropriate somewhere else. But bringing awareness to the diversity of goals that can be implicated by modern land use disputes should allow for more explicit evaluations of the trade-offs in any zoning decision. Even if the motivation for restrictive zoning is aesthetic, for example, it is important to recognize the impact on affordability. Conversely, encouraging growth may help affordability or create opportunities for agglomeration, but with the possibility of burdening infrastructure beyond what it can easily support and displacing in-place local residents.

But these dynamics do reveal that different groups sometimes end up advocating for land use regulations against their expressed interests. These groups are either being disingenuous about their actual motivations or are mistaken about how different substantive policies translate into land use regulation. The survey of land use goals in the previous part makes it easier to identify these unexpected positions and to explore alternative explanations.

B.  An Example: Nashville’s Music Row

Consider a recent land use fight in Nashville, Tennessee. There is nothing particularly special about this example. Indeed, its point here is its banality—if interesting local color. Nor does it implicate every different interest identified above. But it does reveal the complicated goals of modern land use controversies.

Nashville’s Music Row is two long, multiblock streets near and roughly parallel to the campus of Vanderbilt University. Its name comes from the many recording and music studios located along these long strips.[101] The buildings, however, look residential and are an eclectic hodgepodge that includes craftsman-style bungalows from the first half of the twentieth century, some modern buildings, and a few small office buildings. Increasing development pressure, however, has led to the redevelopment of many of these music-industry uses into new apartment buildings.[102] This has led to heated conflict over the future of Music Row, culminating in a two-year building moratorium that recently ended.[103]

At first glance, fights over the future of Music Row look entirely conventional. Groups arrayed against the development include NIMBY neighbors as well as preservationists. One of the most hard-fought development battles on Music Row concerned RCA Studio A. In 2014, when a developer announced plans to tear down and redevelop the property, singer-songwriter Ben Folds wrote an open letter to the musical community imploring that the building be saved.[104] He listed the musicians who recorded hit records there, including The Beach Boys, Dolly Parton, Jewel, Kesha, Hank Williams Jr., and many, many others. Folds was himself the tenant at the time, and he organized an aggressive and ultimately successful effort to buy the building and preserve it as a recording studio.[105]

While Studio A was saved through a voluntary transaction for $5.7 million, other building and redevelopment plans remain fiercely contested by preservationists. But historic preservation is an awkward fit because many of the buildings are not historical in any way. The historic preservationists are focused less on the buildings than on the musical history that they represent. In fact, it appears that their interests are not about preserving the architecture but are instead about preserving the music industry more broadly. One preservationist, for example, articulated the agenda this way: “We can’t just sit back and let Nashville’s unique history be destroyed and its present-day musical culture lost.”[106]

Other opposition to development appears to be more about preserving the community’s character than about any historic resources.[107] One longtime bartender said of the development on Music Row: “It’s not Nashville anymore. It used to be a little place, with a little airport, that had some fantastic music and big personalities and millions of different stories. Now it’s a metropolis, this is a big city.”[108] Others have focused their opposition on the associated infrastructure burdens and, in particular, on traffic.[109] Indeed, traffic has become a flashpoint in Nashville. There is no consensus about how to address it, but many people oppose all new development until a plan is in place.[110]

Finally, additional opposition comes from community groups who worry about affordability.[111] Any new construction in and around Music Row is likely to be very expensive. Many people worry that any new housing will be unaffordable, and that this will displace current residents. Housing costs in Nashville have been skyrocketing, putting particular pressure on affordable housing. According to one study, Nashville has lost 18,000 affordable housing units since 2000, and 44% of Nashville renters are housingcost burdened.[112] Opponents of new development often focus on affordability as a central objection.[113]

On the opposite side are developers who see a significant financial opportunity in the Music Row redevelopment.[114] Their interests are predictable. But the City also sees a substantial fiscal upside. Not only does new development generate more property tax revenue, but also its net fiscal impact is even more positive. Where dense urban infill has occurred nearby, the net tax revenue per square foot is dramatically higher than anywhere else in the metro area because of the relatively low cost of building out infrastructure and the high property values.[115] This, coupled with the City’s generally lax approach to land use regulation, makes redevelopment of Music Row appear all but inevitable, despite the interests aligned on the other side. Whoever wins, the controversy seems entirely predictable and conventional.

A closer look at the stakes, however, reveals a more complicated dynamic, and one that is increasingly representative of modern land use fights. Consider, first, the effect on traffic: a central source of opposition. This is a perplexing reason to oppose redevelopment. Music Row is adjacent to Vanderbilt and in the heart of the City. Yes, new residential buildings will increase local traffic to some extent, but it should marginally reduce traffic in the City more broadly. It is not exactly transit-oriented development since there is no meaningful transit in Nashville. But it is development that is closer to the places people work and play and so will result in fewer vehicle miles traveled. Traffic has a lot of political valence, and it makes tactical sense for opponents to use it as a reason to push back against development, but it seems misguided as a basis for objecting new buildings on Music Row. For this same reason, those concerned with sustainable development should favor dense infill in places like Music Row over suburban sprawl. This also reduces development’s total carbon footprint.

Increased housing costs citywide are also a poor reason to oppose the redevelopment of Music Row. While new housing may well precipitate a change in the character of the particular neighborhood and increase prices there, the best evidence demonstrates that adding supply will decrease median property values in the City and increase affordability. This is true even if the new housing stock is exclusively market rate and expensive. Such is the power of supply and demand.[116] Opposition to new development by immediate neighbors on grounds of affordability is rational if parochial—what Professor Been has labeled City NIMBYs.[117] Opposition based on concerns about housing costs throughout the city makes little sense.

There are countervailing peculiarities on the other side as well. Focusing on the fiscal impact of redevelopment, tax implications are only part of the story. Many business leaders and politicians have argued that it is in Nashville’s economic interest to preserve the music industry.[118] Preventing redevelopment of Music Row means that music studios do not need to compete with residential developers and so amounts to a kind of subsidy for the music business. There are agglomeration economies that come from the clustering of music studios in one particular area: musicians and songwriters frequently collaborate throughout the day, musicians record together, industry executives meet and do business in person up and down Music Row.[119] And, as traffic problems worsen throughout the city, the value of spatial proximity is only increasing.

Yes, market pressures demonstrate that the property is more valuable as residential or mixed-use development. Putting the property to a higher and better use unlocks value, by definition. However, the music industry produces significant benefits—positive externalities—for the City as a whole and should perhaps be preserved for that reason. It generates significant economic activity and also creates a kind of identity that attracts businesses and residents. If those benefits exceed the marginal value of redevelopment, then the City has a fiscal reason to subsidize the industry and prevent redevelopment, even if that means missing out on some increased tax revenue.

None of this reveals what the right answer is for Nashville. But it does demonstrate how the stakes of modern land use and zoning fights often go far beyond the traditional proregulation and antiregulation camps. It also reveals how different groups’ interests do not converge around any singular goal. Instead, different constituencies are motivated by very different underlying goals. Ultimately, people choose to live, to work, and to invest in Nashville for very different reasons. Some like the small-city feel of the place, others the music industry, still others the statewide emphasis on property rights and economic liberties, and others the appealing and new housing stock in increasingly dense mixed-use neighborhoods. But ultimately, these are all different views that can be reflected in different land use policies. Allowing Nashville to make decisions about which goals it will prioritize will give voters and property owners the opportunity to pursue or protect those aspects of the city that they most want.

 


[*] *..  Elizabeth H. & Granville S. Ridley, Jr. Professor of Law, Vanderbilt Law School. Christina Jeffcoat provided excellent research assistance.

 [1]. For the seminal Supreme Court case recognizing the utility of zoning in this area, see Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387–89 (1926).

 [2]. Christopher Serkin, The New Politics of New Property and the Takings Clause, 42 Vt. L. Rev. 1, 3–6, 13 (2017).

 [3]. Robert C. Ellickson et al., Land Use Controls 95, 332–33 (4th ed. 2013) (discussing revenue related purposes of zoning and “dealmaking” by local governments); Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 Calif. L. Rev. 837, 879 (1983) (discussing local governments’ desire to retain flexibility to bargain ad hoc with developers).

 [4]. Ellickson et al., supra note 3, at 114–15, 121, 328, 858 (discussing local governments’ ability to zone for more purposes than originally anticipated in the SZEA and examples of local governments that use zoning to achieve sustainability, affordability, and preservation goals); see also Melvyn R. Durchslag, Forgotten Federalism: The Takings Clause and Local Land Use Decisions, 59 Md. L. Rev. 464, 464–65 (2000) (discussing various municipal land use goals); Serkin, supra note 2, at 6–7 (comparing differing political attitudes toward environmental zoning versus rent regulations).

 [5]. Thanks to Professor Edward Cheng for labeling the phenomenon of multimodal convergence.

 [6]. See Conor Friedersdorf, San Francisco’s Self-Defeating Housing Activists, Atlantic (Dec. 29, 2015), https://www.theatlantic.com/politics/archive/2015/12/san-francisco-is-confused-about-the-villain-thats-making-it-unaffordable/422091; Ilya Somin, Why More Liberal Cities Have Less Affordable Housing, Wash. Post: Volokh Conspiracy (Nov. 2, 2014), https://www.washingtonpost.
com/news/volokh-conspiracy/wp/2014/11/02/more-liberal-cities-have-less-affordable-housing/?utm_ter
m=.b355844b719a. See generally Vicki Been, City NIMBYs, 33 J. Land Use & Envtl. L. 217 (2018) (exploring increasing “Not In My Backyard” (“NIMBY”) policies in cities and the resulting effect on urban housing costs).

 [7]. Serkin, supra note 2, at 14–15.

 [8]. See Emily Badger, The Bipartisan Cry of ‘Not in My Backyard’, N.Y. Times (Aug. 21, 2018), https://www.nytimes.com/2018/08/21/upshot/home-ownership-nimby-bipartisan.html; Mike Rosenberg, Housing Construction in Local Suburbs Is at Historic Lows, While Seattle Is Setting Records, Seattle Times, https://www.seattletimes.com/business/real-estate/king-county-suburbs-slow-their-housing-growth-canceling-out-seattle-building-boom (last updated Aug. 11, 2018, 12:49 AM).

 [9]. A Standard State Zoning Enabling Act (Advisory Comm. on Zoning, U.S. Dep’t of Commerce, rev. ed. 1926).

 [10]. See, e.g., Christopher Serkin, Existing Uses and the Limits of Land Use Regulation, 84 N.Y.U. L. Rev. 1222, 1232–33 (2009) (briefly describing the history of the SZEA and citing sources on the topic).

 [11]. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394–95 (1926).

 [12]. See, e.g., Rose, supra note 3, at 848–49 & n. 29 (briefly describing history of zoning in the United States).

 [13]. See, e.g., Brian Galle, In Praise of Ex Ante Regulation, 68 Vand. L. Rev. 1715, 1724 (2015) (“[Z]oning laws restrict development before it results in unwanted burdens on neighbors, while nuisance suits impose liability after the damage has begun.”); G. Donald Jud, The Effects of Zoning on Single-Family Residential Property Values: Charlotte, North Carolina, 56 Land Econ. 142, 142 (1980) (“One of the principal purposes of municipal zoning ordinances is to protect property owners from the deleterious external effects that may arise when incompatible land uses exist within the same neighborhood.”); Carol M. Rose, Property Rights, Regulatory Regimes and the New Takings Jurisprudence—An Evolutionary Approach, 57 Tenn. L. Rev. 577, 588 (1990) (“As land resources became more developed, we progressed from a regime of ‘anything goes’ with one’s landed property, to a regime of post hoc judicial control on ‘nuisances,’ to a regime of legislatively defined, ex ante regulation.”); Mariana Valverde, Taking ‘Land Use’ Seriously: Toward an Ontology of Municipal Law, 9 Law Text Culture 34, 52 (2005) (identifying a “religion of incompatible land uses that was codified in the 1916 New York City zoning ordinance”).

 [14]. See Euclid, 272 U.S. at 386–91 (analogizing a town’s ability to prevent industry from building in residential areas to the law of nuisances).

 [15]. See Ambler Realty Co. v. Village of Euclid, 297 F. 307, 316 (N.D. Ohio 1924) (stating that the true purpose of separating single-family residences and apartment buildings was to further economic class divisions), rev’d 272 U.S. 365 (1926); Richard H. Chused, Euclid’s Historical Imagery, 51 Case W. Res. L. Rev. 597, 613–14 (2001) (discussing how the Supreme Court’s language in Euclid’s majority opinion created a negative, stereotypical image of apartment buildings, validating zoning as a way to segregate based on race and class).

 [16]. Christopher Serkin, Capitalization and Exclusionary Zoning, Interdisc. Ctr. Herzliya (forthcoming 2019) (manuscript at 5) (on file with author).

 [17]. Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 394–97 (discussing the effects of apartment buildings on single-family residences and concluding that as apartments come very near to being nuisances, it is within a municipality’s police powers to exclude them from single-family residential areas); see also Chused, supra note 15, at 614.

 [18]. The intuition appears to be that burdens imposed by voluntary associations, like the private governance of a homeowner’s association, are preferable to public regulatory authority. It is not obvious why that should be since people can choose their local governments just as they can choose their residential subdivisions. For early endorsement of more but not exclusive reliance on nuisance law, see Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. 681, 68283, 761–62 (1973).

 [19]. See Serkin, supra note 2, at 6–7, 13.

 [20]. William A. Fischel, The Homevoter Hypothesis 14–16, 18 (2001) (comparing “growth machine” jurisdictions with “homevoter” jurisdictions).

 [21]. For some recognition of these changes, see Been, supra note 6, at 219–23; Serkin, supra note 2, at 13–16.

 [22]. See Been, supra note 6, at 218 (noting that cities have traditionally been viewed as “growth machines” and suburbs as favoring NIMBY policies to protect “homevoter” property values).

 [23]. See Edward H. Ziegler, Sustainable Urban Development and the Next American Landscape: Some Thoughts on Transportation, Regionalism, and Urban Planning Law Reform in the 21st Century, 42 Urb. Law. 91, 92–99 (2010) (discussing the NIMBY’s opposition to sustainable development); Ben Lockshin, Beyond NIMBY: Understanding Different Affordable Housing Advocates and Detractors (Part 1), Greater Greater Wash. (Sept. 26, 2017), https://ggwash.org/view/64879/beyond-nimby-understanding-different-affordable-housing-advocates-detractors (discussing the differences between NIMBYs and BANANAs); Alana Semuels, From ‘Not in My Backyard’ to ‘Yes in My Backyard’, Atlantic (July 5, 2017), https://www.theatlantic.com/business/archive/2017/07/yimby-groups-pro-dev elopment/532437 (discussing the rise of YIMBY views in California in response to the need for high-density housing).

 [24]. See generally Holly Doremus, Takings and Transitions, 19 J. Land Use & Envtl. L. 1 (2003) (discussing the effects of changing morals, technology, and scientific understanding on land use regulations); William A. Fischel, The Law and Economics of Cedar-Apple Rust: State Action and Just Compensation in Miller v. Schoene, 3 Rev. L. & Econ. 133 (2007) (concluding that the government should regulate land uses that harm uses with higher commercial values).

 [25]. See Wayne Batchis, Enabling Urban Sprawl: Revisiting the Supreme Court’s Seminal Zoning Decision Euclid v. Ambler in the 21st Century, 17 Va. J. Soc. Pol’y & L. 373, 379–80 (2010) (explaining that the single-use zoning structure exists in the majority of U.S. jurisdictions); Nicole Stelle Garnett, Save the Cities, Stop the Suburbs?, 116 Yale L.J. Pocket Part 192 (2006), http://yalelawjournal.org/forum/save-the-cities-stop-the-suburbs (discussing the persistence of single-use zoning in suburbs).

 [26]. See, e.g., J. Peter Byrne, The Rebirth of the Neighborhood, 40 Fordham Urb. L.J. 1595, 1596–97 (2013) (arguing that new urban residents seek vibrant, mixed-use neighborhoods).

 [27]. Doris S. Goldstein, New Urbanism—Planning and Structure of the Traditional Neighborhood Development, 17 Prob. & Prop. 9, 9 (2003) (“New Urbanism is a land planning philosophy advocating compact, mixed-use, pedestrian-friendly development.”).

 [28]. See id. at 10 (discussing how new urban developments separate residential and commercial sections but also allow a mixture of uses in residential sections).

 [29]. For an example of explicit mixed-use zoning, see Seaside, FL., Code of Ordinances ch. 158, no. 83-10 (1983); Samantha Salden, The Seaside Code: The Poster That Started It All, Seaside Res. Portal, https://seaside.library.nd.edu/essays/the-code (last visited May 11, 2019) (discussing the Seaside Code as the first application of new urbanism in a form-based code).

 [30]. Brian W. Ohm & Robert J. Sitkowski, The Influence of New Urbanism on Local Ordinances: The Twilight of Zoning?, 35 Urb. Law. 783, 785 (2003) (comparing flexible techniques such as overlay zoning to the rigidity of single-use districts); Scott B. Osborne, Planning Issues in Mixed-Use Developments, 21 Prac. Real Est. Law. 29, 30 (2005) (discussing new urbanist zoning through conditional use permits and special zoning designations).

 [31]. Fischel, supra note 20, at ix, 15–16; Harvey Molotch, The City as a Growth Machine: Toward a Political Economy of Place, 82 Am. J. Soc. 309, 30910 (1976).

 [32]. S. Rodgers, Urban Growth Machine, in 12 International Encyclopedia of Human Geography 40, 41–42  (Rob Kitchin & Nigel Thrift, eds., 2009) (describing the property investors, developers, financiers, etc. that make up the growth machine).

 [33]. See Office of Policy Dev. & Research, U.S. Dep’t of Hous. & Urban Dev., Ensuring Equitable Neighborhood Change: Gentrification Pressures on Housing Affordability 5–6 (2016), https://www.huduser.gov/portal/sites/default/files/pdf/Insights-Ensuring-Equitable-Growth.pdf (discussing the burdens of rapid urban growth on existing communities).

 [34]. See William K. Jaeger, The Effects of Land-Use Regulations on Property Values, 36 Envtl. L. 105, 112–17 (2006) (discussing how land use decisions can increase property values and “amenity” benefits); see, e.g., Scott Cohn, New Insights on How Cities and States Stack Up in the Race to Win Amazon’s $5 Billion HQ2, CNBC, https://www.cnbc.com/2018/07/05/new-clues-on-how-cities-stack-up-in-the-race-to-win-amazons-hq2.html (last updated July 10, 2018, 7:42 PM) (explaining that Amazon’s criteria for new headquarters includes an area with more than one million people and urban locations that can attract and retain talent).

 [35]. See Michelle Shortsleeve, Challenging Growth-Restrictive Zoning in Massachusetts on a Disparate Impact Theory, 27 B.U. Pub. Int. L.J. 361, 380 (2018) (describing how municipalities use zoning to limit population growth, and thus constrain congestion and preserve community aspects).

 [36]. Eric A. Cesnik, The American Street, 33 Urb. Law. 147, 173–84 (2001) (discussing how metropolitan planning is constrained by the status quo or the existing look and function of the area).

 [37]. See Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 Yale L.J. 385, 390–92 (1977) (describing the various ways municipalities prevent all development in certain areas).

 [38]. Kristoffer Jackson, Do Land Use Regulations Stifle Residential Development? Evidence from California Cities, 91 J. Urb. Econ. 45, 54 (2016); see also Been, supra note 6, at 227–28.

 [39]. See infra Section II.F.

 [40]. Ellickson et al., supra note 3, at 649–50 (discussing the high public costs of public schools). For an analysis of the interplay between fiscal land use decisions and public schools, see Eric A. Hanushek & Kuzey Yilmaz, Land-Use Controls, Fiscal Zoning, and the Local Provision of Education, 43 Pub. Fin. Rev. 559, 563–67 (2015).

 [41]. See Paul G. Lewis, Retail Politics: Local Sales Taxes and the Fiscalization of Land Use, 15 Econ. Dev. Q. 21, 24–26 (2001) (arguing that the quest for retail development and its resulting sales tax revenue motivates California’s land use decisions).

 [42]. Christopher Serkin & Leslie Wellington, Putting Exclusionary Zoning in Its Place: Affordable Housing and Geographic Scale, 40 Fordham Urb. L.J. 1667, 1684 (2013); Smart Growth Am., Fiscal Impact Analysis of Three Development Scenarios in Nashville-Davidson County, TN 11 (2013), https://smartgrowthamerica.org/app/legacy/documents/fiscal-analysis-of-nashville-develop ment.pdf (showing the tax revenue generated by the one high-rise area as compared to two other developments).

 [43]. Been, supra note 6, at 21923.

 [44]. Rose, supra note 3, at 882, 889–91.

 [45]. See, e.g., Vicki Been, Impact Fees and Housing Affordability, 8 Cityscape 139, 143–47 (2005) (discussing the advantages and disadvantages of development fees); Arthur C. Nelson, Development Impact Fees: The Next Generation, 26 Urb. Law. 541, 548–53 (1994) (addressing various objections to development fees).

 [46]. See Jim Rossi & Christopher Serkin, Energy Exactions, 104 Cornell L. Rev. (forthcoming 2019).

 [47]. See Robert C. Ellickson, The Role of Economics in the Teaching of Land-Use Law, 1 UCLA J. Envtl. L. & Pol’y 1, 7 (1980).

 [48]. See Erin Ryan, Zoning, Taking, and Dealing: The Problems and Promise of Bargaining in Land Use Planning Conflicts, 7 Harv. Negot. L. Rev. 337, 347–49 (2002) (noting the increasingly discretionary practice of land use decisionmaking).

 [49]. Fischel, supra note 20, at 18.

 [50]. Id. at 5–6.

 [51]. Vicki Been, “Exit” as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Colum. L. Rev. 473, 483 (1991); Molly S. McUsic, Looking Inside Out: Institutional Analysis and the Problem of Takings, 92 Nw. U.L. Rev. 591, 62526 & n.162 (1998).

 [52]. Been, supra note 51, at 504, 509 (discussing how one community’s overly stringent regulation may result in an otherwise beneficial development being taken to a community with better regulatory policies).

 [53]. See Been, supra note 6, at 22729 (noting the contributions of restrictions on housing supply to the lack of affordable housing options).

 [54]. Steven J. Eagle, “Affordable Housing” as Metaphor, 44 Fordham Urb. L.J. 301, 306–21 (2017) (discussing the diverse economic and social benefits of affordable housing); see also Keith Wardrip et al., Ctr. for Hous. Policy, The Role of Affordable Housing in Creating Jobs and Stimulating Local Economic Development 10–13 (2011), https://providencehousing.org/wp-con tent/uploads/2014/03/Housing-and-Economic-Development-Report-2011.pdf.

 [55]. Serkin, supra note 16 (offering a tentative justification for rent regulation).

 [56]. For an overview of inclusionary zoning, see Cecily T. Talbert et al., Recent Developments in Inclusionary Zoning, 38 Urb. Law. 701, 70203 (2006).

 [57]. See Vicki Been et al., Supply Skepticism: Housing Supply and Affordability, 29 Housing Pol’y Debate 25, 29 (2019).

 [58]. N.Y.C., NY, The Zoning Resolution, art. II, ch. 5 (2018), https://www1.nyc.gov/site/ planning/zoning/access-text.page.

 [59]. Benjamin Schneider, YIMBYs Defeated as California’s Transit Density Bill Stalls, Citylab (Apr. 18, 2018), https://www.citylab.com/equity/2018/04/californias-transit-density-bill-stalls/558341.

 [60]. See id.

 [61]. Been et al., supra note 57, at 27–29.

 [62]. See Vicki Been et al., Preserving History or Restricting Development? The Heterogeneous Effects of Historic Districts on Local Housing Markets in New York City, 92 J. Urb. Econ. 16, 17 (2016) (“We find that construction activity falls in districts after designation, as expected given the rules accompanying designation.”).

 [63]. For a description of zoning for historic preservation, see J. Dennis Doyle, Historic Preservation Zoning in Maryland, 5 Md. L.F. 100, 101–05 (1976).

 [64]. See Catherine Hart, Community Preference in New York City, 47 Seton Hall L. Rev. 881, 905 (2017) (explaining that the influx of high-income individuals into low-income communities “replaces local residents and deprives long-time residents of the stake they have built in their community”).

 [65]. Been, supra note 6, at 242–44.

 [66]. See Sheryll Cashin, The Failures of Integration 32427 (2004); Rachel D. Godsil, The Gentrification Trigger: Autonomy, Mobility, and Affirmatively Furthering Fair Housing, 78 Brook. L. Rev. 319, 335–37 (2013) (discussing a more nuanced approach to gentrification).

 [67]. The built environment is also important for community preservation, even independent of the financial pressures that can come from gentrification. As Professor Carol Rose observed decades ago, buildings can be important for constituting community, and indeed preservation efforts should be evaluated to that end. See Carol M. Rose, Preservation and Community: New Directions in the Law of Historic Preservation, 33 Stan. L. Rev. 473, 488–91 (1981).

 [68]. See William A. Fischel, Neighborhood Conservation Districts: The New Belt and Suspenders of Municipal Zoning, 78 Brook. L. Rev. 339, 347–49 (2013) (discussing community preservation techniques other than those based on historic status).

 [69]. See, e.g., Dan Grossman, Think Those Slot Homes in Denver Are Ugly? You’re Not Alone, 9 News, https://www.9news.com/article/money/personal-finance/real-estate/think-those-slot-homes-in-de
nver-are-ugly-youre-not-alone/73-490912391 (last updated Nov. 10, 2017, 2:44 PM) (discussing Denver residents’ aesthetic opposition to homes described as “Minecraft characters, Lego characters,” and  “robots”).

 [70]. See Shawn G. Rice, Zoning Law: Architectural Appearance Ordinances and the First Amendment, 76 Marq. L. Rev. 439, 446–48 (1993) (discussing the ways that architectural appearance ordinances can limit the aesthetics of communities).

 [71]. Id. at 446 (describing architectural appearance ordinances as limiting “excessive dissimilarity” and requiring “conformity” or “harmony” (citations omitted)).

 [72]. See Edward Scissorhands (20th Century Fox Dec. 6, 1990).

 [73]. For a description of form-based codes, see Nicole Stelle Garnett, Hoover Inst., Upscaling the Neighborhood 18–32 (2018), https://www.hoover.org/sites/default/files/upscaling_ the_neighborhood_revised_final_garnett_0.pdf.

 [74]. For an overview of this dynamic, see generally David Markell, Climate Change and the Roles of Land Use and Energy Law: An Introduction, 27 J. Land Use & Envtl. L. 231 (2012) (discussing the effect that “land use, energy efficiency, and mobile and stationary source emission reduction approaches” can have on climate change).

 [75]. See Reid Ewing et al., Smart Growth Am., Measuring Sprawl and Its Impact 18–19 (2002), https://www.smartgrowthamerica.org/app/legacy/documents/MeasuringSprawl.PDF.

 [76]. Patricia E. Salkin, Sustainability and Land Use Planning: Greening State and Local Land Use Plans and Regulations to Address Climate Change Challenges and Preserve Resources for Future Generations, 34 Wm. & Mary Envtl. L. & Pol’y Rev. 121, 147–56 (2009) (surveying regulatory land use techniques meant to increase sustainability).

 [77]. See, e.g., John R. Nolon, An Environmental Understanding of the Local Land Use System, 45 Envtl. L. Rep. 10215, 10220–21 (2015).

 [78]. Other kinds of less conventional responses are possible as well. For an example of one, see Rossi & Serkin, supra note 46.

 [79]. See George F. Gramling, III, Wetland Regulation and Wildlife Habitat Protection: Proposals for Florida, 8 Harv. Envtl. L. Rev. 365, 37778 (1984).

 [80]. See Christopher Serkin, Public Entrenchment Through Private Law: Binding Local Governments, 78 U. Chi. L. Rev. 879, 913 (2011) (discussing how building infrastructure with limited capacity can be more controlling than zoning).

 [81]. See Bradley C. Karkkainen, Whither NEPA, 12 N.Y.U. Envtl. L.J. 333, 349 (2004) (arguing that environmental-informative requirements function as regulatory penalties, creating incentives to upgrade environmental standards early in projects).

 [82]. Critical Paths for Vermont Wildlife, Nat’l Wildlife Fed’n, https://www.nwf.org/Our-Work/Habitats/Wildlife-Corridors/Northeast (last visited May 12, 2019).

 [83]. See, e.g., Ensign Bickford Realty Corp. v. City Council of Livermore, 137 Cal. Rptr. 304, 309 (Ct. App. 1977); Sprenger, Grubb & Assocs., Inc. v. City of Hailey, 903 P.2d 741, 74849 (Idaho 1995).

 [84]. See Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461, 466–67 (7th Cir. 1988).

 [85]. A downtown commercial district may generate significant positive effects, which a big-box store at the edge of town can threaten. See Scott L. Cummings, Law in the Labor Movement’s Challenge to Wal-Mart: A Case Study of the Inglewood Site Fight, 95 Calif. L. Rev. 1927, 194852 (2007).

 [86]. Roderick M. Hills, Jr. & David Schleicher, The Steep Costs of Using Noncumulative Zoning to Preserve Land for Urban Manufacturing, 77 U. Chi. L. Rev. 249, 25356 (2010) (acknowledging the prevalence of the use of noncumulative zoning for these purposes but ultimately arguing against it).

 [87]. Transwestern, New York City Life Science Market 5 (2017), https://download.trans
western.com/public/Media/NY-Life-Science-Outlook_2Q2017.pdf.

 [88]. See Roderick M. Hills & David Schleicher, Planning an Affordable City, 101 Iowa L. Rev. 91, 11516 (2015) (“Many cities have no adequate substitutes, because they create agglomeration economies that rivals cannot duplicate.”).

 [89]. Broadway enjoys a special zoning district. For an interesting overview of New York’s zoning code, see Allison Meier, How Zoning Laws Shaped New York City over the Last Century, Hyperallergic (Dec. 14, 2016), https://hyperallergic.com/341092/mastering-the-metropolis-mcny.

 [90]. See Donald J. Smythe, The Power to Exclude and the Power to Expel, 66 Clev. St. L. Rev. 367, 39799 (2018) (analyzing the continued use of exclusionary zoning by local governments).

 [91]. See, e.g., Timothy J. Choppin, Breaking the Exclusionary Land Use Regulation Barrier: Policies to Promote Affordable Housing in the Suburbs, 82 Geo. L.J. 2039, 2054 (1994) (“Discrimination, both racial and economic, is one reason suburban residents oppose affordable housing.”).

 [92]. See Mick Dumke, Amid Affordable Housing Dispute, Conservatives Seek a Home on the Northwest Side, Chi. Sun-Times (May 23, 2018, 10:48 AM), https://chicago.suntimes.com/news/
affordable-housing-chicago-northwest-side-gop-conservative-republicans-northwest-side-jefferson-park-illinois-policy-institute (describing a political fight over a proposed affordable housing project in Chicago).

 [93]. See Been et al., supra note 57, at 2527.

 [94]. See Rose, supra note 3, at 862–63, 897; see also Melanie Yingst, Commission OKs Rezoning of Properties, Troy Daily News (June 14, 2018), https://www.tdn-net.com/news/43184/commission-oks-rezoning-of-properties (discussing an Ohio local zoning commission’s decision to rezone two agricultural properties to allow residential development of the area).

 [95]. See generally Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 Colum. L. Rev. 223 (1986) (discussing interest-group rent seeking).

 [96]. See Robert H. Nelson, Privatizing the Neighborhood: A Proposal to Replace Zoning with Private Collective Property Rights to Existing Neighborhoods, 7 Geo. Mason L. Rev. 827, 833 (1999) (arguing that the proliferation of common interest communities demonstrates their appeal).

 [97]. Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. Pol. Econ. 416, 417–20 (1956).

 [98]. See Denise Ryan, The $31b “Green” Branding of Vancouver, Vancouver Sun (Jan. 31, 2016), http://www.vancouversun.com/business/green+branding+Vancouver/11686117/story.html.

 [99]. See Tiebout, supra note 97, at 418.

 [100]. Serkin, supra note 2, at 13–15.

 [101]. See Jessi Maness, The History of Music Row: 60 Years of Greatness, Sports & Ent. Nashville (Oct. 13, 2015), http://sportsandentertainmentnashville.com/the-history-of-music-row-60-years-of-greatness.

 [102]. See, e.g., Michelle C. Kroft, Show Your Support—Help Save Music Row at the Rally the Row Event July 24th!, Hist. Nashivlle, Inc. (July 16, 2018), http://historicnashvilleinc.org/show-your-support-help-save-music-row-at-the-rally-the-row-event-july-24th [https://perma.cc/UVK8-R89Z] (“Since 2013, 43 buildings with music industry connections have been demolished—most to make way for apartment buildings.”); see also Margaret Renkl, The Day the Music Died, N.Y. Times (Jan. 21, 2019), https://www.nytimes.com/2019/01/21/opinion/nashville-music.html (outlining the gentrification of Music Row).

 [103]. See Tony Gonzalez, Music Row Apartments Halted, Prompting New Study, Tennessean (Feb. 12, 2015 6:44 PM), https://www.tennessean.com/story/news/local/2015/02/12/music-row-apartment-plan-halted-prompting-study/23324495.

 [104]. Open Letter from Ben Folds, owner of Grand Victor Sound (June 24, 2014), https://musicrow.com/2014/06/ben-folds-open-letter-rca-studio-a-to-be-sold.

 [105]. See Richard Fausset, Deal Saves Historic Nashville Studio, N.Y. Times (Oct. 3, 2014), https://www.nytimes.com/2014/10/04/us/deal-saves-historic-nashville-studio.html.

 [106]. Jessica Nicholson, National Trust for Historic Preservation and Historic Nashville to Hold Rally the Row Event, Music Row (July 20, 2018) (quoting Carolyn Brackett, Senior Field Officer, National Trust for Historic Preservation), https://musicrow.com/2018/07/national-trust-for-historic-preservation-and-historic-nashville-to-hold-rally-the-row-event [https://perma.cc/2DR2-6QU6%5D; see also id. (“We have to act now to save this place that is iconic and historically priceless.” (quoting Trey Bruce, Vice President, Historic Nashville)).

 [107]. See, e.g., Nashville Metro. Planning Dep’t, Music Row Detailed Plan app. (2016) [hereinafter Music Row Detailed Plan], https://www.nashville.gov/Portals/0/SiteContent/Planning/
docs/MusicRow/Music%20Row%20Detailed%20Plan%20Draft%20Recommendations__withAppendix.pdf (Survey 1 Responses Organized by Question) (listing comments from survey respondents about preserving Music Row, including: “To me, the individual buildings create an overall feel that binds the community. It’s humble and full of character.”).

 [108]. Nikki Junewicz, Historic Buildings in Danger in Music Row Redevelopment Proposal, Fox 17 Nashville (May 20, 2018) (quoting Jonathan Long, local bartender), https://fox17.com/news/local/
historic-buildings-in-danger-in-music-city-row-redevelopment-proposal [https://perma.cc/HDK4-RGL3%5D.

 [109]. See Music Row Detailed Plan, supra note 107, at app. (“GROW[TH] SHOULD NOT OCCUR BY BUILDING . . . . That would only worsen the traffic and will be less inviting for tourism.”); see also E-mail from John Dotson, Parks Broker, e-Pro, to Planning Commissioners (Dec. 6, 2016, 11:40 AM), https://www.nashville.gov/document/ID/cdd7797e-1ed5-49c7-8e20-7fc9ef4fd8a9/
December-8-2016-public-comments-received-through-December-7 (“We are most concerned about traffic, parking and infrastructure.”).

 [110]. See, e.g., Music Row Detailed Plan, supra note 107, at app. (commenting the following on getting around Music Row: “[I]nfrastructure should be considered BEFORE approval of millions of square feet of new construction, not after.”). Cf. Hiroko Tabuchi, How the Koch Brothers Are Killing Public Transit Projects Around the Country, N.Y. Times (June 19, 2018), https://www.nytimes.com/
2018/06/19/climate/koch-brothers-public-transit.html (discussing the support and opposition for a new transit plan in Nashville and other cities across the United States).

 [111]. See Office of the Mayor Megan Barry, Housing Nashville: Nashville & Davidson County’s Housing Report 1112, 40–42 (2017) [hereinafter Nashville Housing Report], https://www.nashville.gov/Portals/0/SiteContent/MayorsOffice/AffordableHousing/Housing%20Nashville%20FINAL.pdf; see also Music Row Detailed Plan, supra note 107, at app. (commenting the following concerning how to strengthen the Music Row community: “Affordability. Nashville can’t chase out all of us median income people . . . .”).

 [112]. Nashville Housing Report, supra note 111, at 11, 16.

 [113]. See David Plazas, The Costs of Growth and Change in Nashville, Tennessean, https://www.tennessean.com/story/opinion/columnists/david-plazas/2017/01/29/costs-growth-and-change-nashville/97064252 (last updated Jan. 10, 2018, 6:50 PM) (discussing how the development boom in Nashville has led to increasingly high housing costs); Stephen Trageser, Music Row Development and Neighborhood Character, Nashville Scene (Sept. 25, 2018 3:00 PM), https://www.nashvillescene.com/news/pith-in-the-wind/article/21024081/music-row-development-and-neighborhood-character (“[W]ith Nashville real estate prices as high as they are today, the chances of [neighborhood business] finding a comparable spot nearby seem slim.”) (discussing the pressure to develop Music Row and its effect on existing businesses).

 [114]. Staff Reports, Music Row Project Lands $12.8M Permit, Nashville Post (Apr. 4, 2018), https://www.nashvillepost.com/business/development/article/20999454/notes-music-row-project-lands-128m-permit (reporting that a development company has obtained a permit to build a Music Row office building expected to be worth $35 million).

 [115]. Smart Growth Am., supra note 42, at 10–11 (analyzing the significantly positive fiscal impact and tax benefit of the Gulch, a dense infill development, compared to two other Nashville developments).

 [116]. See Emily Hamilton, Three Lessons from Nashville’s Building Boom, Market Urbanism (Apr. 27, 2018), http://marketurbanism.com/2018/04/27/three-lessons-nashvilles-building-boom (“While there’s no way to legislate that great music will continue to come out of Music Row, the best way to make Nashville a good place for up and coming artists is to allow for new housing construction that will allow affordable neighborhoods to stay that way.”) (arguing that development has kept rents in other neighborhoods more affordable).

 [117]. See Been, supra note 6, at 242–43.

 [118]. See Patrick Sisson, On a Mission to Preserve Nashville’s Music Row, Meridian, https://www.meridian.net/tennessee/2016/11/10/13592846/nashville-live-music-row (last visited May 12, 2019) (describing the outsize impact Music Row has had on Nashville’s economy).

 [119]. See Carolyn Brackett & Randall Gross, Nat’l Trust for Historic Pres., A New Vision for Music Row 15 (2016), https://www.nashville.gov/Portals/0/SiteContent/Planning/docs/
MusicRow/Music%20Row%20Recommendations%20Report%20April%202016.pdf (“Like in the early days of Music Row, many industry leaders and participants still walk between offices and meet up for lunch, networking, contracting, or collaboration.”).

 

From Nuisance to Environmental Protection in Continental Europe – Article by Vanessa Casado Perez & Carlos Gomez Liguerre

 

From Volume 92, Number 4 (May 2019)
DOWNLOAD PDF


 

from nuisance to environmental protection in Continental Europe

Vanessa Casado Perez[*] & Carlos Gomez Liguerre[†]

Introduction

Neighboring relationships are prone to conflict. The use of an estate has effects on the one next to it. A doctor may be bothered by the noise coming from a confectioner’s business.[1] The more heterogeneous the uses of the pieces of property are, the more likely conflicts are to arise. While individuals have always had the capacity to affect the enjoyment of their neighbors, the situations became more complex with the advent of industrialization, which put residential and industrial users in close proximity.

Historically, the law of nuisance has been used to solve these conflicts. Nuisance law combines property and liability rules leading to injunction and damage remedies.[2] Today, regulation has been added to the mix of solutions to neighbors’ disputes. In environmental matters—the litmus test for nuisance—the choices are even more varied. As pollution got more egregious, regulation took the center stage. The increase in the number of parties tested the limits of the institution of nuisance. Regulation initially took the form of permits and licenses for the most egregiously polluting industries, often requiring those industries to adopt some precautions and, thus, reducing the potential nuisances. Second, land use planning mitigated the conflict between uses by regulating whether they were allowed to be in close proximity. Third, countries enacted environmental laws because industrialization brought the potential for smoke and particles to travel beyond the land of the immediate neighbor. Furthermore, even ex post liability has taken a regulatory turn with publicly enforced environmental liability schemes.

Nuisance was the first line of defense against pollution, but today it has been mostly superseded by regulatory schemes.[3] This shift left nuisance with a limited role—solving issues between a small number of close by neighbors—in almost every jurisdiction that lacks figures like public nuisance.[4] While it is foreseeable that two parties will negotiate ex ante to achieve a socially desirable outcome—for example, two parties may establish an easement or servitude between neighboring plots of land precluding potential nuisance[5]—the situation in which large amounts of people or their lands are affected requires a different type of response.

Even though its role has been reduced, private law nuisance regulation has not been static. Not only has the regulatory landscape become more complex, but also, as law and economics literature has analyzed, nuisance provisions have gone beyond the building blocks of property and liability rules, demonstrating the complexity of current regulation in scenarios of conflicting uses of property[6] and acknowledging the interplay with public regulatory standards.

The codification and evolution of nuisance in civil law jurisdictions illustrates perfectly the evolution just described. This Article analyzes the evolution and complexity of the legal responses to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, the Netherlands, and Catalonia) are based on Roman law rules that are not always clear. The fuzziness of those Roman law rules explains, in part, why the civil codes did not respond homogenously to nuisances, despite this common origin. The first Subsection briefly describes the institution of nuisance in Roman law. Then, this Article describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial divergence and the trends towards similar rules across jurisdictions, this Article explains the potential forces of convergence at the European level: the Draft Common Frame of Reference, the E.U. Environmental Liability Directive, and the decisions of the European Court of Human Rights.[7]

I.  Comparative Analysis of Nuisance Provisions

A.  Nuisance and Roman Law: A Common Origin

Continental civil law jurisdictions’ nuisance regulation has a common origin: Roman law. There are few Roman texts dealing with nuisance. It is clear from the Digest of Justinian (“Digest”) that there was an action against someone who interferes with another’s property with intention to injure (innuria).[8] The response to the most common nuisance situation, in which a landowner injures another’s piece of land by using his own land in a purportedly legal way without aiming at affecting the enjoyment of his neighbors, did not have a clear footing in Roman law.[9]

There was a sense that although private property was absolute, there were some inacceptable interferences. Among interferences, smoke was the one that troubled medieval jurists the most when interpreting the Digest. The Digest explained that an owner of a cheese shop emitting smoke cannot interfere with his neighbor’s property, but the owner who emits smoke from a hearth can.[10] Bartolus of Saxoferrato, one of the greatest medieval jurists, suggested that what matters is the amount of smoke and the normal or abnormal character of the activity.[11] The lack of consensus among medieval jurists translated into different provisions in different jurisdictions at the time of codification.

B.  Evolution: From Property to Torts

While there was discussion about the limits of property in Roman law, the civil codes adopted a very broad vision of property as stated in article 544 of the French Civil Code of 1804: “[p]roperty is the right of enjoying and disposing of things in the most absolute manner, provided they are not used in a way prohibited by the laws or statutes.”[12] The same trend can be observed in article 348 of the Spanish Civil Code[13] and in section 903 of the German one.[14] But this trend continues even today; the Catalan Civil Code, the most recent of continental Europe, still captures the same idea.[15]

Even though property was deemed absolute, European civil codes did not absolutely ignore negative externalities caused by a use of a piece of real estate property to neighboring ones. European civil codes regulate the equivalent of the tort of nuisance in two ways: as an action protecting property by injunction and as a tort action for damages.[16]

The regulation against nontrespassory invasions is understood primarily as a regulation between neighboring owners, and solutions are sought first in the realm of property. As a result of their common Roman law origins, European civil codes approach property holistically.[17] In this first building block—the property one—nuisance is configured as a sub-type of trespass, with the difference being that intrusion, instead of being physical, is produced by intangible substances.[18] The European civil codes incorporate rules that seek to solve the problem of immissions (nontrespassory invasions) ex ante through the constitution of easements, which allow the owner of an estate to carry out annoying activities and force the owner of another estate to put up with them. The easement can be constituted by agreement between the affected parties or by law. The basic ex post remedy against a nuisance is the action of cessation (from the Roman law actio negatoria),[19] with which the affected owner can paralyze the activities that are not covered by a servitude, similar to the remedy of injunction. This action is both an action and remedy. The right of damages has, in this first building block, a residual position.

Property rules, however, do not work that well when the owners are no longer contiguous and when the victims of the immission are many and cannot be identified ex ante.[20] As a result of the industrialization and the proliferation of highly polluting industrial activities, the scenario just described with multiple parties affected became commonplace. At that time, in the late nineteenth to early twentieth century, a second phase started where tort law and its ex post remedies supplemented the property protection in continental European legal traditions. Liability rules were applied to nuisance cases by either extending the rules of the law of torts or by jurisprudential doctrines, such as abuse of rights, which require reparation of the damage caused even though it is caused in the exercise of a pre-existing right. Some jurisdictions extended the general fault-based torts and, in other jurisdictions, strict liability provisions were enacted.[21] As we shall see, the idea of strict liability was difficult for European civil codes to embrace,[22] but the problems that nuisance tackles fit better in a strict liability framework. In fact, strict liability is preferable to forms of negligence because it affects the incentives of the polluter in relation to both precautions and the level of activity.[23]

In a third phase, even tort law proves to be insufficient. Administrative regulations start by regulating dangerous activities to health and the environment, becoming the benchmark for the standard of care. In most cases, those activities that have been authorized according to administrative regulations cannot be enjoined.[24] The estate owner affected by another’s activity can only request compensation for the damages he suffered. The role of liability rules has, thus, been reinforced in this phase dominated by administrative rules.

Remedies offer the most succinct way to summarize the evolution of nuisance. Initially, injunction (cessation action) was the main remedy. Then, jointly with injunction, damage compensation entered the picture. Finally, damage compensation became the main private law remedy because the tortfeasor may have had to pay compensation but the tortfeasor did not need to stop the action if it was protected by an administrative license.[25]

C.  Country Provisions

This Section describes the different provisions. As noted, the original codification of nuisances in the different civil codes was not homogenous even though all traditions stem from Roman law. The lack of homogeneity across jurisdictions could also be explained by the date of approval and the stage of industrialization of different countries at the initial point of codification. The civil codes, which codify all of private law, of different countries were approved at different points in their history, from the 1800s to the early 2000s. Some codes were approved during the first industrial revolution, which ended in the early 1800s; others in the midst of the second industrial revolution in the late 1800s and early 1900s; and others around the mid-1900s when zoning was introduced. The differences, as shall be seen, do not exactly track the different levels of industrialization. It would be expected that a higher level of industrialization at the time of codification translated into a more fine-grained nuisance provision. In a more refined version of such a hypothesis, those countries where industrialization is mature may give a clearer response to nuisance. Before, while on their way to industrialization, the marginal value of the immission is high enough that the willingness to stop it may be lower.[26] But as industrialization advances, the marginal benefit of more industrial activities declines, and thus, conflicts may be solved favoring the nonindustrial actor.[27] This is reflected in the jurisprudence of the German courts, which updated its interpretation of the nuisance provisions.[28] The latter illustrates that the legislator was not the only driving force of change in nuisance provisions: courts also played an important role, which is not a common feature in civil law. Finally, convergence has been prompted by the preeminent role of administrative regulation on nuisances that may affect a large number of estates: jurisdictions are converging toward highly complex nuisance regulations.[29]

The following Subsections explore the regulation in five different jurisdictions, and Section I.D summarizes the threads underlying European regulation.

1.  France

 The broadest regulation of the protection of the right to enjoy one’s property can be found in the oldest regulation of the ones analyzed: the Napoleonic Code of 1804. The French Civil Code states the following in its article 544: “[p]roperty is the right of enjoying and disposing of things in the most absolute manner, provided they are not used in a way prohibited by the laws or statutes.”[30]

In fact, the preparatory works of the Code make no mention of nuisance.[31] Thus, to challenge a nuisance situation, the only option was the general damage action, which is a fault-based liability clause in article 1382 of the Code: “[e]very action of man whatsosever which occasions injury to another, binds him through whose fault it happened to reparation thereof.”[32]

The traditional nuisance scenario does not often fit a framework based on fault, though. Thus, it was up to the French judges to find a solution to neighboring problems. They used an “abus de droit” framework, particularly for interferences created with the aim to affect the neighbor.[33] If property were absolute, abusing only one’s own rights would be the source of liability. Later, French judges also created the doctrine of “troubles de voisinage” (neighbors’ problems) when a use of land was unduly offensive.[34] The analysis of “troubles de voisinage” is based on the idea that one who profits from an activity that his neighbor does not and imposes harm on him should compensate his neighbor for the harm. Nonetheless, if the neighbor has chosen a particularly sensitive activity, he should not be compensated. This judge-made law is still in place, but it has been complemented by regulation mitigating nuisances. For example, the Planning Code prohibits issuing a building permit if a structure “may be exposed to grave nuisance . . . , and in particular, those due to noise.[35] This rule is not tailored to the particular situation and has no standard of unreasonableness. But judges have not been the only source of change. For example, the French Code of Construction and Housing allows the “coming to the nuisance” defense.[36]

In March 2017, the Ministry of Justice of the French Government issued a draft bill amending the tort provisions in the Civil Code (Projet de Réforme de la Responsabilité Civile).[37] The Project aims to modernize the tort provisions (extra-contractual liability) in the Civil Code, pushing the agenda set by Ordinance n°2016-131 of February 10, 2016 for the reform of contract law, the general regime of obligations and proof of obligations.[38] The proposed text includes a nuisance provision.

The Project would amend article 1244 of the Code as follows:

The owner, lessee, holder of a title whose principal object is a permission to occupy or exploit land or a building, or a person who commissions work on land or enjoys the latter’s authority, who causes a nuisance exceeding the normal inconveniences of being neighbours, is liable strictly for the harm resulting from the nuisance.

Where a harmful activity has been authorised by an administrative means, the court may, however, award damages or order reasonable measures permitting the nuisance to be stopped.[39]

2.  Germany

Almost a century after the approval of the Napoleonic Code, the German Civil Code (“BGB”), approved in 1896 (coming into force in 1900), regulated ownership with more limitations than its French counterpart in section 1004:

If ownership is impaired in any other way than by deprivation or withholding of possession, the owner may require the disturber to remove the injury. If a continuance of the injury is to be apprehended, the owner may apply for an injunction.

The claim is barred if the owner is bound to submit to the injury.[40]

Even before the BGB, German courts had ruled on neighbors’ disputes applying standards of strict liability. In fact, up until 1883, industrial users were always at the losing end. In 1883, the Supreme Court of the Empire (Reichsgericht) adopted the locality rule, around the same time as industrial interests grew in importance. The interpretation of this provision in the early years of the twentieth century was clearly favorable to the developing industry: instead of defining locality as the surrounding area, courts looked at the situation in other cities.[41] This locality rule was incorporated in section 906 of the BGB, showing this slightly more limited conception of ownership. Section 906 expands the type, although not the choice necessarily, of remedies available. Instead of an injunction, if damages resulted from a nuisance that the plaintiff had to tolerate, the defendant would have to pay permanent damages. Section 906 of the current BGB provides the following:

(1) The owner of a plot of land may not prohibit the introduction of gases, steam, smells, smoke, soot, warmth, noise, vibrations and similar influences emanating from another plot of land to the extent that the influence does not interfere with the use of his plot of land, or interferes with it only to an insignificant extent.

. . . (2) The same applies to the extent that a material interference is caused by a use of the other plot of land that is customary in the location and cannot be prevented by measures that are financially reasonable for users of this kind. Where the owner is obliged to tolerate an influence under these provisions, he may require from the user of the other plot of land reasonable compensation in money if the influence impairs a use of the owner’s plot of land that is customary in the location or its income beyond the degree that the owner can be expected to tolerate.[42]

In 1994, this text was added to paragraph (1):

An insignificant interference is normally present if the limits or targets laid down in statutes or by statutory orders are not exceeded by the influences established and assessed under these provisions. The same applies to values in general administrative provisions that have been issued under section 48 of the Federal Environmental Impact Protection Act [Bundes-Immissionsschutzgesetz] and represent the state of the art.[43]

This legislative amendment goes in line with codifying the complex rules that Professors Georg von Wangenheeim and Fernando Gomez analyzed[44] or the broader pliability rules (a combination of property and liability rules) that Abraham Bell and Gideon Parchomovsky introduced.[45] In its current reading, section 906 is a great example of how legislation has tried to resolve the tension between the public interest and the principle of free enjoyment of one’s property. In other words, it shows the connection between administrative law and nuisance. The effect of embracing administrative law solutions for environmental issues and neighbor relations reduces the remedies toolkit. This scheme is reflected today not only in the 1994 version of the BGB but also in a provision of the 1974 Federal Act for the protection against emissions.[46] Like the BGB, this Act excludes injunctions (actio negatoria) and only allows for requiring precautions or compensation for both harm to one’s property and lost income if it stems from an activity that has been licensed by the administration. This concept of denial damage is gaining terrain.

Nonetheless, this displacement of injunctions was also not an innovation in Germany. Since 1869, when the Industrial Code for the North German Federation was issued, case law has recognized it. The Industrial Code established that there was no injunction if the activity emitting the nuisance had a license.[47] This defense was extended by courts to all cases where there was a permit[48] or, more recently, when the activities were deemed in the public interest.[49] Once again, in this realm, courts went beyond the text. Courts have connected the locality rule and administrative operating licenses rule that “a facility not licensed by the administration could not be judged as customary in a place.”[50] Courts have also affected the relationship between administrative statutes and nuisance when judges have encountered cases in which there was a violation of emissions administrative standards. While the violation does not automatically trigger the application of nuisance because the link between the damage and the violation needs to be proven, courts have reversed the burden of proof.[51]

3.  Spain

The Spanish Civil Code of 1889 is thought to be influenced by the French Napoleonic Code, but its nuisance regulation is far more specific than the French one, perhaps because it was approved almost a century later. The specific regulation of article 590 of the Spanish Civil Code suggests that there is not a clear correlation between industrial development and the intricacies of the nuisance regulation because Germany was equally, if not more developed, than Spain and both their codes give specific responses to nuisance.

The detailed regulation in the Spanish Civil Code may be explained by the existence of a historical regulation of nuisance. In Spain, there were references in the Partidas of Alfonso X (The Wise) and in el Fuero Real,[52] both from the thirteenth century. In the early nineteenth century, a legal text (the Novisima Recopilacion), while not properly regulating nuisance, established rules about fire prevention or location of industries that demonstrate the concerns regarding nuisance.

This legal tradition is embodied in article 590 of the Spanish Civil Code, which is located in the property part of the Code. It reads as follows:

Nobody may build near a wall belonging to another or a party wall wells, drains, aqueducts, ovens, forges, chimneys, stables, deposits of corrosive materials, artefacts which moved by steam engine, or machines which, by themselves, or as a result of their products are dangerous or harmful, without keeping the distances provided in applicable regulations and local customs, and without performing the necessary protective works, subject to the conditions provided by the same regulations as to the manner of performing them. 

In the absence of regulations, the precautions deemed necessary to prevent any damage to the neighbouring properties or buildings shall be taken, after the issuance of an expert report.[53]

Again, the Spanish Civil Code offers a more detailed regulation in article 1908 in the part dedicated to torts. It specifically targets situations that may amount to a nuisance and adopts a strict liability rule. A codified strict liability rule in the late nineteenth century was not common. Article 1908 reads as such:

Likewise, the owners shall be liable for damages caused:

1. By the explosion of machines which have not been taken care of with due diligence, and by the inflammation of explosive substances which have not been put in a safe and suitable place.

2. By excessive fumes which are harmful to persons or properties.

3. By the fall of trees placed on transit spaces, unless it results from force majeure.

4. By the emanations of drains or deposits of infectious materials which have been built without observing precautions appropriate to their location.[54]

In Spain, too, the role of courts has been central. While scholars of other jurisdictions perceive courts as moving in a single direction, Spanish courts have used different tests. As a recent Supreme Court decision states: “[t]he response of the Spanish legal regime and its complementary case law to the problem of harm caused to an individual by immissions that today we would label as ‘environmental’ has not been homogeneous.[55] Echoing Roman law, the requirement of intention dominated some nuisance cases even though article 1908 does not require fault. From there, courts incorporated the French doctrine of abuse of rights, which was incorporated in the Spanish Civil Code in 1974,[56] during the dictatorship years. When the doctrine of abuse of rights fell short, courts looked to other European countries, namely Germany, for a model to follow. There, the distinction between nuisances that must be tolerated and those that must not hinges on the abnormal use of the property.[57] The confusion in the jurisprudence has been such that while there is no requirement of fault to request an injunction, courts have applied fault principles when an action for damages caused by nuisance has been brought.[58] In some of the cases in which they required fault when they should not have, the courts paid lip service to negligence by setting the bar of diligence extremely high, even in cases where the activity was subjected to a license and public regulation had been complied with.[59]

4.  Netherlands

In the Netherlands, the discussion under the old Civil Code from 1838, which preceded the industrial revolution starting around 1850, traced a similar path to the one in French private law. Initially, the approach focused on the idea of property and the abuse of rights under article 625 of the old Civil Code, which determined that an owner could not use his property in a way that caused nuisance to others.[60] This was criticized because it treated article 625 as a basis for liability beyond the general negligence provision of article 1401, which read: “[e]very unlawful act which causes damage to another obliges the person by whose fault that damage was caused to compensate it.”[61] When the focus shifted to article 1401, the role of article 625 was interpreted to be merely that there was no defense against liability based on exercising one’s own property right.[62] The unlawfulness of article 1401 required either a violation of a statutory duty or the infringement of a right. In nuisance actions, Dutch courts expanded the traditional grounds for unlawfulness by adopting a proper social conduct test to determine when the nuisance was unlawful and, as a consequence, negligent. Based on this test, in 1919, the Dutch Supreme Court accepted noise as a violation of a property right.[63] The same 1919 decision made clear that holding a license did not give those creating a nuisance immunity from a tort action. In this case, the legislature responded faster than the courts. The Industrial Nuisance Act of 1875[64] adopted a complex licensing system and an expansive view of nuisance by declaring that the denial of a license could be based on one of the following grounds: “(1) danger; (2) damage to property. . . ; and (3) serious nuisance, e.g. nuisance that makes a house partially or entirely impossible to live in and spreading of waste or disgusting smells.”[65]

One of the scholars who defended the assertion that article 1401 was the provision applicable to nuisance cases was a drafter of the new 1992 Civil Code, and accordingly, the social conduct test is still the controlling approach. The new Civil Code, though, has more specific provisions. Article 5:37 reads as follows:

The owner of immovable property may not, to a degree or in a way that is unlawful according to Article 6:162 of the Civil Code, cause nuisance to owners of other immovable properties by instigating sounds, vibrations, smells, smoke or gases or by denying these owners daylight or fresh air or by taking away the support of buildings or constructions.[66]

The reference to article 6:162[67] is still a reference to negligence, showing the difficulty that civil law jurisdictions had in accommodating strict liability. The interpretation of the unlawfulness of the conduct depended on the definition of proper social conduct in Dutch case law. The test for proper social conduct is a multifactor test, which allows courts room to adapt the rule to the particular circumstances, such as the locality.[68]

While negligence still plays a role, its role has been diminished by the advent of explicit strict liability in many instances, such as the collapse of real property (article 6:174),[69] or the damage caused by dangerous substances (article 6:175).[70] The latter incorporates administrative standards to define when a substance is dangerous, and thus, the article applies. The switch between a property rule and a liability rule—that is, between injunction and damages—is not based on an administrative standard in the Dutch Civil Code. It is based on the public interest; the court will assess if a nuisance must be tolerated, although with compensation, based on compelling reasons of public interest (article 6:168).[71] Administrative regulations define what is in the public interest, but the Dutch Civil Code allows courts to look beyond regulations.

5.  Catalonia

One of the most recent civil codes, the Catalan Civil Code of 2006, has a more detailed regulation. It includes a cessation action on articles 544-5[72] and 544-6,[73] and then it devotes two articles to regulate what legal (article 546-13) and illegal (article 546-14) nuisances are, paying close attention to the role of regulation, as well as the economic benefits of the conflicting activities. It is worth noting that before the codification in 1990, the Catalan Parliament passed an act on nuisance with very similar regulations regarding the connections with administrative regulations. Both recognize that even though an activity may comply with existing regulations, it may still be a nuisance if damage occurs and the damage caused should be compensated. Both also established the nonrebuttable presumption that if an activity exceeds the legal limits set in specific legislation, the activity is a nuisance. It also regulates a situation reminiscent of the famous U.S. case, Boomer v. Atlantic Cement Co.[74] The Catalan Civil Code allows an activity to continue while compensating for past and future damages if the cessation of said activity will have dire economic consequences. The nuisance provisions seem to align with the current regulation in section 906 of the BGB and, in general, with the trend toward the incorporation of administrative law in private law analysis.

1. The proprietors of an estate must tolerate emissions coming from a neighbouring estate that are innocuous or that cause prejudice that is not substantial. In general, prejudice is considered substantial when it exceeds the limit or indicative values established by the laws or regulations.

2. The proprietors of an estate must tolerate emissions that cause substantial prejudice if they are the result of the normal use of the neighbouring estate, according to the regulations, and if putting an end to them involves an expenditure that is economically disproportionate.

3. In the case referred to in Section 2, the proprietors affected have the right to receive indemnification for damage caused in the past and economic compensation, set by common agreement or judicially, for any that may be caused in the future if these emissions excessively affect the produce of the estate or its normal use, according to local custom.

. . . 5. Substantial emissions that come from administratively authorised installations give the neighbouring proprietors affected the right to request the adoption of technically possible and economically reasonable measures to prevent the damaging consequences and to request indemnification for the damage caused. If the consequences can not be prevented in this way, the proprietors have the right to economic compensation, established by common agreement or judicially, for damage that may occur in the future.[75]

D.  Comparative Analysis

First, although every continental civil code analyzed has a common origin in Roman law, the lack of clarity in Roman norms still seeped into the codification. Moreover, as mentioned, it cannot be said that their Roman origins translated into convergence at the time of codification. Similarly, the divergence at the outset cannot be explained by the different levels of industrialization. The hypothesis was that differences between nuisance provisions included in the civil codes traced the economic development of the particular country. The idea behind such a hypothesis is that those rules enacted at the beginning of industrialization coupled with development of urban areas would be more detailed because the conflicts between neighboring activities would be more acute, particularly in the absence of zoning and other public regulations. Germany and Spain approved their civil codes at roughly the same time, and while Germany had a higher level of industrialization, its provisions do not necessarily reflect this. An alternative hypothesis could be that at the beginning of industrialization, while conflicts were acute, institutional actors felt the need to be lenient toward those industrial activities imposing on their neighbors given that the social benefits they brought were high. Thus, jurisdictions would pay more heed to nuisance once industrialization was mature, and the marginal benefit from an industrial activity may not exceed the marginal harm to a nonindustrial actor.[76] Broad nuisance provisions may suggest that these adaptations could occur at the judicial level.

Second, while nuisance provisions did not change much in the codes until the 1990s, their interpretations have. Judges have been very important driving forces of evolution and convergence in nuisance law toward strict liability.

Third, the evolution of nuisance provisions where they have been amended or where recent provisions have been enacted acknowledges the complexity of the current framework regulating relations between neighbors increasingly dominated by public law. Borrowing Professor Mark Geistfeld’s title, it can be said that the newest provisions make explicit the role of tort law in the age of statutes.[77] As a result, these provisions are more complex.

There are two main tenets of this relationship between tort and administrative regulation. First, some regulations specifically state that if there is damage and the defendant has violated the pertinent administrative regulations, it will be assumed that the damage is substantial enough that the nuisance does not need to be tolerated.[78] Even in the absence of such an explicit regulation, if damage exists, there would be a strong presumption against the defendant before the courts. Second, complying with the administrative regulation does not mean that nuisance is excluded if there is damage, but rather the remedy changes, as will next be described. As Professors Georg von Wangenhein and Fernando Gomez pointed out, nuisance rules today are a combination of property and liability rules, and the switch between the two types of rules is provided by a regulatory standard.[79] While administrative regulation could explicitly preempt nuisance actions by declaring an activity a legal nuisance,[80] thus requiring the landowner affected to endure it, the avenue most commonly taken by European jurisdictions is that even when in compliance with the regulation, damages and preventive measures, but not injunctions, are available.[81] The impact of the coordination with administrative standards on Coasean bargaining remains to be analyzed. If an actor needs to comply with a regulation, the option of paying the party supporting a higher level of interference becomes less attractive because the actor will also face a fine.[82]

II.  Forced Convergence at the European Level?

All the civil law jurisdictions analyzed are part of the European Union and parties to the European Convention on Human Rights. As a result, there could be transnational forces of convergence, defining either nuisance rules themselves or the realm in which private nuisance can operate.

This Article analyzes three potential sources of convergence. First, while there has not been a binding harmonization of private law and, thus, there is no European nuisance, the Draft Common Frame of Reference (“DCFR”), which offers a sort of uniform civil code for European countries, will be briefly discussed. The DCFR can offer a sense of what direction jurisdictions will take in the future, a focal point for convergence of sorts. Next, this Article covers the Environmental Liability Directive. All countries analyzed above need to implement the Directive. Given the subject matter of the Directive, it has a clear impact on nuisance. It has a potential impact in two ways. First, for those regulations that incorporate the administrative standard to assess whether the interference is substantial, the standard is now homogeneous because it is set at the European level. Second, it establishes a public liability regime, and thus may compete with private nuisance actions. Finally, this Section reviews the decisions of the European Court of Human Rights that have considered nuisances a violation of a person’s right to respect for his private and family life as well as his home. National authorities that fail to respond to nuisances promptly and adequately may be found in violation of the European Human Rights Convention. As a consequence, national authorities may reduce even further the need for nuisance provisions to play a complementary role, although its existence clearly plays such a role and contributes to deterrence.

A.  The Draft Common Frame of Reference

In 2009, the European Commission published the DCFR.[83] The DCFR is similar to the Uniform Commercial Code and the Restatement in the United States, without being either.[84] Although it has been described a “European Civil Code in all but name,”[85] it is not yet that. It sets up the minimum common denominator across the private law of European countries that should facilitate the future unification of private law at the European level to strengthen the common market, but there is not yet anything to restate. The DCFR aims to serve as a model for both future European Law and future national law as it also identifies the best legal solutions.[86]

Article VI.-3:206 of the DCFR (Accountability for damage caused by dangerous substances or emissions) states the following :

(1) A keeper of a substance or an operator of an installation is accountable for the causation by that substance or by emissions from that installation of personal injury and consequential loss, loss within VI.-2:202 (Loss suffered by third persons as a result of another’s personal injury or death), loss resulting from property damage, and burdens within VI.-2:209 (Burdens incurred by the State upon environmental impairment), if:

(a) having regard to their quantity and attributes, at the time of the emission, or, failing an emission, at the time of contact with the substance it is very likely that the substance or emission will cause such damage unless adequately controlled; and

(b) the damage results from the realisation of that danger.

. . . (3) “Emission” includes:

(a) the release or escape of substances;

(b) the conduction of electricity;

(c) heat, light and other radiation;

(d) noise and other vibrations; and

(e) other incorporeal impact on the environment.

. . . (5) However, a person is not accountable for the causation of damage under this Article if that person:

(a) does not keep the substance or operate the installation for purposes related to that person’s trade, business or profession; or

(b) shows that there was no failure to comply with statutory standards of control of the substance or management of the installation.[87]

The DCFR targets only harm to people or property, not pure ecological damage. As such, diminished revenues by a restaurant as a result of the loss of an environmental amenity do not fall under this article. The scope is limited to: (1) substances—solid, liquid, or gas—that are objectively dangerous, either by nature or because they are kept in large quantities; and (2) emissions—a broader concept. The DCFR adopts strict liability for nuisances created by commercial or industrial activities. Non-professional parties, according to the comments to the DCFR, may still be liable but under a negligence rule.[88] According to article 3:102 of the DCFR, a person is negligent when he “does not meet the particular standard of care provided by a statutory provision whose purpose is the protection of the person suffering the damage from that damage.”[89] Furthermore, under the DCFR, compliance with public regulation standards offers a defense, an issue not admitted in every jurisdiction. The DCFR may be a force of convergence in the future if either the European Union decided to enact these provisions or if countries used it as a focal point for future reforms of their civil codes. As of today, it shows the tension between negligence and strict liability that many European jurisdictions face when regulating nuisance and the need to acknowledge the preeminence of administrative regulations.

B.  E.U. Environmental Liability Regulation

1.  Directive

It is impossible to fully grasp the role of nuisance in European law without understanding the European Directive 2004/35, of 21 of April, on environmental liability with regard to the prevention and remedying of environmental damage.[90] This Directive aims at protecting public property or common goods that are not covered by civil code rules protecting private property and at solving the collective action problem normally associated with such environmental damage. Furthermore, the transboundary character of many environmental issues made the common regulation necessary. The Directive adopts the “polluter pays” principle[91] and specifically states that it is complementary to the national regulations. For the purpose of this piece, article 3(3) states: “[w]ithout prejudice to relevant national legislation, this Directive shall not give private parties a right of compensation as a consequence of environmental damage or of an imminent threat of such damage.”[92]

The content of article 3(3) leaves national nuisance provisions intact, and it is surprising for two reasons. First, Directive 2004/35 deviated from the content of the White Paper[93] that started the legislative process for this Directive. In that White Paper, the Commission pointed at the need to create a level playing field for all the actors subject to E.U. environmental liability.[94] Given that the European Union embraces the complementarity between private and public enforcement, the lack of harmonization of private remedies is surprising because the Directive was expected to follow the steps of other European regulations, such as defective products.[95] It is remarkable that something similar happened in the case of waste regulation. The substantive regulation of waste management in the European Union was accompanied by a proposal of harmonized liability framework, in which compliance with a license to operate was not considered a defense.[96] The proposal was abandoned, and now waste falls under the Environmental Liability Directive.

Second, the European Union is a member of the Aahrus Convention, and it has been argued that the European Union’s lack of civil remedies in the environmental liability directive may be in tension with article 9(2)(b) of the Convention, which calls for such remedies.[97] In fact, in 2016, the European Commission in its roadmap, titled “[c]ommunication on access to justice at national level related to measures implementing EU environmental law,” expressed the problems that still exist due to the lack of harmonization across member states.[98]

2.  Countries’ Responses

Each country must incorporate the contents of the Directive 2004/35 into their own national legislation. All national laws incorporating the E.U. regulation go beyond harm to the environment by including provisions that carve out property damages. Those private damages are not dealt with in the special legislation.[99] The statutes seem to set up clear boundaries between environmental damage and other types of damages, closing the door to potential claims of breach of statutory duty because the scope of the norm does not cover those private interests. Instead, private damages are subject to the general nuisance rules. It is difficult to imagine a case in which a court will deny that, provided there is property damage, there is no nuisance when the defendant has been found liable under the environmental liability statutes. A violation of the statute will play a role when ascertaining fault, or where nuisance is governed by strict liability, a violation can be sufficient evidence that the damage reaches the threshold of significance and that such nuisance should not be tolerated.[100]

C.  Nuisance as a Violation of Human Rights

An interesting development in this field is the jurisprudence of the European Court of Human Rights (“ECHR”), which considers nuisance a violation of human rights. The ECHR did so in López Ostra v. Spain. The plaintiff, López Ostra, lived near the town’s waste-treatment plant, which caused odors, fumes, and noise.[101] The Spanish executive authorities were passive and did not respond promptly to stop the nuisance.[102] The ECHR in López Ostra expressed that: “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.”[103]

Accordingly, the Court decided that López Ostra had a right to respect for her private and family life, her home, and her correspondence according to article 8 of the European Convention on Human Rights:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[104]

Courts generally give Spain’s authorities room to balance the rights of the individual with the public interest, but in this case, Spanish authorities had gone too far. The Court awarded López Ostra pecuniary damages based on the depreciation of her home and nonpecuniary damages to compensate for her mental anguish.[105] The Kingdom of Spain had to pay 4,000,000 pesetas in 1998 (around 27,719 in U.S. dollars).[106]

The ECHR has had the opportunity to reiterate the same doctrine in two subsequent cases on immissions. Both cases were against Spain and about noise nuisances. The cases are Moreno Gómez v. Spain[107] and Cuenca Zarzoso v. Spain.[108] In the first decision, the Court stated that:

Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it may involve the authorities’ adopting measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves . . . . Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants’ rights under paragraph 1 of Article 8, or in terms of an interference by a public authority to be justified in accordance with paragraph 2 of Article 8, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance . . . .[109]

López Ostra, Moreno Gómez, Cuenca Zarzoso, and other decisions, such as the decision dealing with the noise produced by runaways at Heathrow Airport, should push public authorities to enforce the environmental regulations to prevent and stop nuisances, thus reducing the sphere of private law. There is an obligation of the States that have signed the European Convention on Human Rights to adopt the appropriate administrative measures to prevent nuisances that affect the lives of their citizens.

Conclusion: Is There Still a Role for Private Law?

This Article’s analysis of the nuisance provisions in several European civil law countries has shown the different stages of the protection against nuisances: from property, to torts, and then to public regulation. At the time of codification, these European countries did not converge even though their traditions all stem from Roman law. Some countries have almost no provision of nuisance; in other countries, fault liability triggers damages that are combined with cessation actions; and yet, others adopted strict liability.

These divergent nuisance provisions still play a role today, albeit a reduced one. European civil law jurisdictions’ nuisance provisions reflect the evolution from nuisance problems between two adjacent neighbors to a scenario of nuisance conflicts between heterogeneous users with a high number of potential defendants. Like in the common law, nuisance provisions work well for the former. For the latter, public regulations take the central stage. Recently enacted or amended civil codes converge in the sense that they acknowledge the interplay between private law and public regulation. In many cases, private nuisance is not wholly displaced, but the remedies available to defendants will depend on whether the activity causing a nuisance has been administratively authorized. If it is administratively authorized, the cessation action that leads to an injunction remedy is no longer available.

 


[*] *. Associate Professor, Texas A&M School of Law. Research Associate Professor, Texas A&M Department of Agricultural Economics. Affiliated Researcher, The Bill Lane Center for the American West, Stanford University. E-mail: vcasado@law.tamu.edu.

[†] †. Profesor Titular, Universitat Pompeu Fabra Barcelona. Humboldt Research Scholarship for Experienced Researchers – Alexander von Humboldt Stiftung. E-mail: carlos.gomez@upf.edu. The authors want to thank the organizers of and participants in the Convergence and Divergence in Private Law conference held at the New York University School of Law on November 13, 2018. The authors thank Joseph Rebagliati and Steffani Fausone for their excellent research assistance.

 [1]. R.H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 2 (1960).

 [2]. This mix of remedies makes the analysis of this legal institution complex. “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’”   Prosser and Keeton on the Law of Torts § 86, at 616 (W. Page Keeton et al. eds., 5th ed. 1984). Professor Henry Smith states that “[i]n light of these conflicting strains of thought about nuisance, the law of nuisance is widely regarded as a ‘mess,’ a ‘wilderness of law,’ a ‘legal garbage can,’ and a ‘mystery.’” Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 Va. L. Rev. 965, 970 (2004) (citations omitted). However, Professor Smith believes that there it is not so such a mess but a combination of property rights delineating strategies. Id.

 [3]. The literature is rich on the choice between ex ante regulation or ex post liability as substitutes. For an account on this topic, see Steven Shavell, Economic Analysis of Accident Law 27784 (1st ed. 1987).

 [4]. For a definition of public nuisance, see Nuisance, Encyclopædia Britannica, https://www.
britannica.com/topic/nuisance#ref59803 (last visited May 17, 2019). For an analysis of public nuisance, see generally John E. Bryson & Angus Macbeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 Ecology L.Q. 241 (1972).

 [5]. Richard A. Epstein, The Economic Structure of Roman Property Law, in The Oxford Handbook of Roman Law and Society 513, 521 (Paul J. du Plessis et al. eds., 2016).

To prevent undue complication of the title, the general law restricts the scope of servitudes. It is not possible to place a servitude on a servitude, or subject them to time limitations or specific conditions. Similarly, servitudes can only bind adjacent properties, thus reducing the difficulty of detecting who is in breach, and facilitating (by reducing the number of parties) the renegotiation or termination of the servitude. These restrictions on freedom of contract give greater clarity to third persons without imposing serious economic disadvantages on the initial parties or their successors in title. The practices that are barred are ones that generally do not make economic sense. The added clarity to the relationship allows servitudes to hold their value over time.

Id.

 [6]. Saul Levmore, Unifying Remedies: Property Rules, Liability Rules, and Startling Rules, 106 Yale L.J. 2149, 2160–66 (1997).

 [7]. It is important to note that this Article focuses only on regulations and remedies related to nontrespassory invasions on real property, not on noninvasive, aesthetic nuisances.

 [8]. Dig. 47.10.44 (Javolenus, From the Posthumous Works of Labeo 9).

 [9]. See James Gordley & Arthur Taylor von Mehren, An Introduction to the Comparative Study of Private Law 167–71 (2006); see also Thomas Glyn Watkin, An Historical Introduction to Modern Civil Law 25556 (1999); David B. Schorr, Historical Analysis in Environmental Law, in The Oxford Handbook of Legal History 1001, 1008 (Markus D. Dubber & Christopher Tomlins eds., 2018); Peter G. Stein, ‘Equitable’ Remedies for the Protection of Property, in New Perspectives in the Roman Law of Property 185, 194 (Peter Birks ed., 1989).

 [10]. Dig. 8.5.8 (Ulpian, Edict 17).

 [11]. See Gordley & Taylor von Mehren, supra note 9, at 16970.

 [12]. The Code Napoleon; Or, The French Civil Code art. 544, at 150 (A Barrister of the Inner Temple trans., 1827) [hereinafter The Napoleonic Code of 1804], http://files.libertyfund.org/
files/2353/CivilCode_1566_Bk.pdf (providing a translation of the French Civil Code of 1804).

 [13]. Código Civil [C.C.] [Civil Code] art. 348 (Spain), translated in Ministerio de Justicia, Spanish Civil Code 70 (Da Sofía de Ramón-Laca Clausen trans., 2013).

 [14]. “The owner of a thing may, to the extent that a statute or third-party rights do not conflict with this, deal with the thing at his discretion and exclude others from every influence.” Bürgerliches Gesetzbuch [BGB] [Civil Code], § 903, translation at https://www.gesetze-im-internet.de/
englisch_bgb/englisch_bgb.html#p3704 (Ger.).

 [15]. Property acquired legally grants to the owners the right to the full use of the properties that constitute its object and to possess and dispose thereof.” Codi Civil de Catalunya art. 541-1, translated in Law 5/2006, of 10 May, on the Fifth Book of the Civil Code of Catalonia, Relating to Real Rights, Parlament de Catalunya 23, https://www.parlament.cat/web/documentacio/altres-versions/lleis-
versions/index.html (last visited May 17, 2019).

 [16]. The structure of these legal claims resembles the order suggested by Smith, supra note 2, at 978–81, according to which the availability of different remedies depends on the level of information shared by the affected parties. The choice between property or liability rules, as the choice between exclusion and governance as strategies to delineate property rights, depends on the cost of information. Accordingly, nuisance has components of both liability and property rules.

 [17]. This holistic approach differs from the more fragmented common law one. Yun-chien Chang & Henry E. Smith, An Economic Analysis of Civil Versus Common Law Property, 88 Notre Dame L. Rev. 1, 7 (2012). According to these authors, the differences are not relevant. The divergence is just explained by a different system of property delineation. Id. at 5–6; see also Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. Legal Stud. S453, S457 (2002) [hereinafter Smith, Exclusions Versus Governance].

 [18]. The difference between trespass and nuisance is far from clear, as it happens in the common law. “The distinction between liability in trespass to land, nuisance, and Rylands v. Fletcher is extremely fine and varies from jurisdiction to jurisdiction within the Common Law.” Konrad Zweigert & Hein Kötz, Introduction to Comparative Law 606 (Tony Weir trans., 3d rev. ed.1998).

 [19]. Herbert Hausmaninger & Richard Gamauf, Am. Philological Ass’n, A Casebook on Roman Property Law 232 n.34 (George A. Sheets trans., Oxford Univ. Press 2012) (2003); see also Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition 910 (Oxford Univ. Press 1996).

 [20]. The growth in the number of victims increases transaction costs to the potential tortfeasor because it would need to reach an agreement with each of the victims as to the best way to compensate them. In such a scenario, liability rules are better. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 110809 (1972); see also Richard A. Posner, Economic Analysis of Law 62–66 (9th ed. 2014). But see Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. Chi. L. Rev. 681, 690, 72930 (1973). For Professors Louis Kaplow and Steven Shavell, the choice between a property or a liability rule lies not only on the existence of transaction costs but also on the existence of imperfect information in relation to the potential damages (of the tortfeasor, the victim, and the judge deciding the case). See Louis Kaplow & Steven Shavell, Property Rules Versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713, 719 (1996). For a general explanation, see Keith N. Hylton, The Economics of Nuisance Law, in Research Handbook on the Economics of Property Law 326, 32343 (Kenneth Ayotte & Henry E. Smith eds., 2011). Professor Smith defines two strategies to delineate property rights: exclusion and governance. The cessation action belongs to the former, with the rest of nuisance to the latter. Nuisance is thus a hybrid. See Smith, supra note 2, at 991. For a general account of exclusion versus governance as methods of delineating property rights, see Smith, Exclusions Versus Governance, supra note 17, at S457–67.

 [21]. For a comparative survey, see Jean Limpens et al., Liability for One’s Own Act, in 11 International Encyclopedia of Comparative Law: Torts pt. I, 119–25 (André Tunc ed., 1983).

 [22]. See Gerhard Wagner, Comparative Tort Law, in The Oxford Handbook of Comparative Law 1003, 1029–34 (Mathias Reimann & Reinhard Zimmermann eds., 2008).

 [23]. Steven Shavell, Strict Liability Versus Negligence, 9 J. Legal Stud. 1, 7 (1980).

 [24]. Administrative agencies displace owners as first-order decisionmakers who can choose any use they want for their properties. This governance rule comes accompanied by a displacement of injunction as an available remedy. The right of the neighbor not to be interfered with by the use of someone else’s plot of land is now protected only by a liability rule. This does not mean though that property rules protecting entitlements via injunction do no longer exist. They still apply to all situations in which uses do not require an administrative authorization. For an analysis of the trade-offs between property and liability rules, see Smith, supra note 2, at 104748.

 [25]. Professor Saul Levmore has described an evolution of remedies from a property rule to a liability rule. The continental European process does not fit into any of the typologies proposed by Professor Levmore. In the case of nuisance, European regulation has changed from a property rule (A stops B) to another damage compensation rule without the need to stop the activity (B pays A, but B can continue his activity provided that B complies with the administrative authorization of the activity). Levmore, supra note 6, at 2156; see also Smith, supra note 2, at 970.

 [26]. Kenneth S. Abraham, The Relation Between Civil Liability and Environmental Regulation: An Analytical Overview, 41 Washburn L.J. 379, 384 (2002).

 [27]. Id.

 [28]. See infra Section I.C.2.

 [29]. Georg von Wangenheim & Fernando Gomez, Conflicts of Entitlements in Property Law: The Complexity and Monotonicity of Rules, 100 Iowa L. Rev. 2389, 2391–95 (2015).

 [30]. The Napoleonic Code of 1804, supra note 12, art. 544, at 150.

 [31]. Gordley & Taylor von Mehren, supra note 9, at 170.

 [32]. The Napoleonic Code of 1804, supra note 12, art. 1382, at 378.

 [33]. James Gordley, Disturbances Among Neighbours in French Law, in 2 The Development of Liability Between Neighbours 65, 84–85 (James Gordley ed., 2010).

 [34]. Id. at 69; see also Thierry Kirat, Les conflits liés au voisinage. L’effet des relations juridiques sur la construction institutionnelle de l’espace, in Proximités et changements socio-économiques dans les mondes ruraux 243, 249–50 (2005) (Fr.).

 [35]. Code de l’urbanisme art. R111-3 (Fr.), translated in Gordley, supra note 33, at 79.

 [36]. Code de la construction et de l’habitation art. L112-16 (Fr).

 [37]. Projet De Reforme De La Responsabilite Civile [Reform Bill on Civil Liability], (proposed Mar. 13, 2017) (Fr.), http://www.justice.gouv.fr/publication/Projet_de_reforme_de_la_responsabilite_
civile_13032017.pdf, translated in Reform Bill of Civil Liability (proposed Mar. 13, 2017), http://www.te
xtes.justice.gouv.fr/art_pix/reform_bill_on_civil_liability_march_2017.pdf. Previously, other proposed amendments by Terre, Catala, and Béteille also included nuisance provisions intended for inclusion in the code as an anchor for the “troubles of neighbors.” Clément Bizet, Les troubles du voisinage: définition et régime, in Avant-projet de loi Réforme de la responsabilité civile 21, 22, 24 (2018), https://hal-univ-paris10.archives-ouvertes.fr/hal-01793099/document.

 [38]. Ordonnance 2016-131 du 10 février 2016 portant réforme du droit des contrats, du régime général et de la preuve des obligations, Journal Officiel de la République Française [J.O.] [Official Gazette of France], Feb. 11, 2016, No. 26. 

 [39]. Projet De Reforme De La Responsabilite Civile art. 1244.

 [40]. The German Civil Code art. 1004, at 226 (Chung Hui Wang trans., 1907), https://archive.org/
details/germancivilcod00germ/page/n3 (providing a translation of the original German Civil Code).

 [41]. Andreas Thier, Disturbances Between Neighbours in Germany 1850-2000, in 2 The Development of Liability Between Neighbours, supra note 33, at 87, 93.

 [42]. Bürgerliches Gesetzbuches [BGB] [Civil Code], § 906, translation at https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.pdf.

 [43]. Id. § 906, para. 1, sentences 23.

 [44]. See generally von Wangenheim & Gomez, supra note 29 (analyzing the interaction between private law rules and public law regulatory standards).

 [45]. See generally Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 Mich. L. Rev. 1 (2002) (discussing contingent rules and entitlements, that is rules that protect the holder of a property entitlement or liability rule, depending on whether some condition has been met or not).

 [46]. Bundes-Immissionsschutzgesetz [BImSchG] [Federal Immission Control Act], Mar. 15, 1974, Bundesgesetzblatt, Teil I [BGBl I] at 721, last amended by Gesetz [G], July 18, 2017, BGBl I at 2771, art. 3 (Ger.), https://www.gesetze-im-internet.de/bimschg/BJNR007210974.html#BJNR00721097
4BJNG000103360.

 [47]. Gewerbeordnung für den Norddeutschen Bund [Trade Regulations for the North German Confederation], June 21, 1869, § 26 (current version at Gewerbeordnung [GewO], as amended Gesetz [G], Nov. 29, 2018, BGBl I at 2666, tit. II, https://www.gesetze-im-internet.de/gewo/BJNR002450
869.html#BJNR002450869BJNG000202301 (Ger.)).

 [48]. For an example of a case in which a court considered that neighbors had to tolerate the sparks from a railway because the railway had a permit, see Reichsgericht [RG] [Federal Court of Justice] Sept. 20, 1882, Entscheidungen des Reichsgerichts in Zivilsachen [RGZ] 265 (267), 1882 (Ger.).

 [49]. Thier, supra note 41, at 95.

 [50]. Id. at 97, 99 (citing Bundesgerichtshof [BGH] [Federal Court of Justice] Oct. 30, 1998, 140 Entscheidungen des Bundesgerichtshofes in Zivilsachen [BGHZ] 1 (6), 1999 (Ger.)). Building licenses are only one factor to consider when analyzing the customary nature of an activity, though. The role of courts in the expansion of strict liability emanating from section 906 of the BGB did not end here. Courts have applied section 906 of the BGB to cases in which there was an illegal use of land and which would result in a negligence claim if the defendant had acted with fault. Id. at 102 (citing Bundesgerichtshof [BGH] [Federal Court of Justice] Mar. 2, 1984, 90 Entscheidungen des Bundesgerichtshofes in Zivilsachen [BGHZ] 255 (262) (Ger.)).

 [51]. Id. at 100.

 [52]. Aniceto Masferrer, Relations Between Neighbours in Spanish Law 1850–2000, in 2 The Development of Liability Between Neighbours, supra note 33, at 173, 177.

 [53]. C.C. art. 590 (Spain), translated in Ministerio de Justicia, supra note 13, at 107.

 [54]. Id. art. 1908.

 [55]. S.T.S., May 31, 2007 (R.J., No. 589, p. 3431) (Spain).

 [56]. De Bases para la modificación del título preliminar del Código Civil ch. 3, art. 7, para. 2 (B.O.E. 1974, 163) (Spain).

 [57]. Masferrer, supra note 52, at 18690.

 [58]. Id. at 190–91.

 [59]. Id. at 191.

 [60]. Art. 2:625 BW (oud) (Neth.); A.J. Verheij, Fault Liability Between Neighbors in the Netherlands 18502000, in 2 The Development of Liability Between Neighbours supra note 33, at 107, 110.

 [61]. Elizabeth van Schilfgaarde, Negligence Under the Netherlands Civil Code—An Economic Analysis, 21 Cal. W. Int’l L.J. 265, 272 (1991) (alteration in original) (quoting Art. 3:1401 BW (oud) (Neth.)).

 [62]. Verheij, supra note 60, at 11011.

 [63]. HR 31 januari 1919, NJ 1919, 161 m.nt Molengraaff (Lindenbaum/Cohen) (Neth.); see also Verheij, supra note 60, at 118–19.

 [64]. Verheij, supra note 60, at 128–29. Professor A.J. Verheij describes that from 1850 to 1880, domestic industry developed thanks to steam engines, railroads, and trade. Id. at 129. In 1880, the development of heavy industry started. Id.

 [65]. Verheij supra note 60, at 125 (discussing Wet Tot Regeling Van Het Toezicht Bij Het Oprigten Van Inrigtingen, Welke Gevaar, Schade Of Hinder Kunnen Veroorzaken 10 junij 1875, S. 1875, 95 (repealed 1952) (Neth.)).

 [66]. Art. 5:37 BW (Neth.), translated in Dutch Civil Code: Book 5 Real Property Rights, Dutch Civ. L., http://www.dutchcivillaw.com/civilcodebook055.htm (last visited May 18, 2019).

 [67]. Article 6:162 reads as follows:

1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof. 

2. As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behaviour.

3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).

Art. 6:162 BW (Neth.), translated in Dutch Civil Code: Book 6 the Law of Obligations, Dutch Civ. L., http://www.dutchcivillaw.com/civilcodebook066.htm (last visited May 18, 2019).

 [68]. Verheij, supra note 60, at 116.

 [69]. Art. 6:174 BW (Neth.), translated in Dutch Civil Code: Book 6 the Law of Obligations, supra note 67. The Dutch Supreme Court refused to apply this provision to a case in which, as a result of the collapse of a building, asbestos particles had affected the premises of the neighbors. Verheij, supra note 60, at 122.

 [70]. Art. 6:175 BW (Neth.), translated in Dutch Civil Code: Book 6 the Law of Obligations, supra note 67.

 [71]. Id. art. 6:168.

 [72]. Article 544-5 reads as follows:

Negatory action is not appropriate in the following cases:

a) If the disturbances or emissions it is intended to put an end to or future disturbances or emissions that it is claimed to prevent do not prejudice any legitimate interest of the proprietors in their property.

b) If the proprietors must support the disturbance due to a provision of this code or due to legal businesses.

Codi Civil de Catalunya art. 544-5, translated in Law 5/2006, of 10 May, on the Fifth Book of the Civil Code of Catalonia, Relating to Real Rights, supra note 15, at 31.

 [73]. Article 554-6 reads as follows:

1. Negatory action is aimed at the protection of the freedom of domain of the real estate property and the re-establishment of the thing to the state prior to a legal or material disturbance.

2. In the exercise of negatory action, the corresponding indemnification for the damage and prejudice produced can be claimed. In this case, the actors do not have to prove the illegitimacy of the disturbance.

Id. art. 544-6.

 [74]. See generally Boomer v. Atl. Cement Co., 257 N.E.2d 870 (1970) (allowing for permanent damages when the harm suffered is small compared to the cost of removing the nuisance).

 [75]. Codi Civil de Catalunya art. 546-14, translated in Law 5/2006, of 10 May, on the Fifth Book of the Civil Code of Catalonia, Relating to Real Rights supra note 15, at 38–39.

 [76]. See Abraham, supra note 26.

 [77]. See generally Mark A. Geistfeld, Tort Law in the Age of Statutes, 99 Iowa L. Rev. 957 (2014) (explaining the relationship between tort law and statutes).

 [78]. This aligns with the rule 1P (B stops A up to a point, and A pays damages associated with its lawful operation) that Professor Levmore describes in his work, which enhances the seminal article by Judge Guido Calabresi and Professor A. Douglas Melamed on this topic. Levmore, supra note 6, at 2149; see also Calabresi & Melamed, supra note 20, at 1092–93.

 [79]. Von Wangenheim & Gomez, supra note 29, at 2392, 2398.

 [80]. A partial and indirect way to declare something a legal nuisance is by allowing the “coming to the nuisance” defense because it allows certain activities to continue if they were in the area before the plaintiff. This is what Article L.112-16 of the French Construction and Housing Code does. Code de la construction et de l’habitation [French Construction and Housing Code] art. L112-16 (Fr.).

 [81]. “Corrective justice is, therefore, attenuated in a regulatory system.” Richard A. Epstein, Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. Legal Stud. 49, 101 (1979).

 [82]. Fines affect ex ante decisions on investments. See generally Lucian Arye Bebchuk, Property Rights and Liability Rules: The Ex Ante View of the Cathedral, 100 Mich. L. Rev. 601 (2001) (explaining the role that different ex post rules, including fines, can have on ex ante decisions despite easy bargaining and the distributive effects of the ex post rules).

 [83]. Frank Emmert, The Draft Common Frame of Reference (DCFR)—The Most Interesting Development in Contract Law Since the Code Civil and the BGB, 2 Cuadernos de la Maestría en Derecho 7, 12 (2012). For further discussion on international tort law and the DCFR, see generally Walter van Gerven et al., Cases, Materials and Text on National, Supranational and International Tort Law (2000); Gerhard Wagner, The Law of Torts in the DCFR, in The Common Frame of Reference (Gerhard Wagner ed., 2009).

 [84]. Emmert, supra note 83, at 1112; Nils Jansen & Reinhard Zimmermann, “A European Civil Code in All But Name”: Discussing the Nature and Purposes of the Draft Common Frame of Reference, 69 Cambridge L.J. 98, 10102 (2010).

 [85]. Jansen & Zimmerman, supra note 84, at 100.

 [86]. The DCFR also aimed to provide an optional set of rules that parties could choose when negotiating an agreement, particularly in contract law. Reinhard Zimmermann, The Present State of European Private Law, 57 Am. J. Comp. L. 479, 510 (2009). However, its provisions could also serve as the baseline to negotiate potential settlements between neighbors in nuisance cases. Id. at 51011.

 [87]. Study Grp. on a European Civil Code & Research Grp. on EC Private Law (Acquis Grp.), Principles, Definitions and Model Rules of European Private Law 3396 (Christian von Bar et al. eds., 2009), https://www.law.kuleuven.be/personal/mstorme/european-private-law_en.pdf.

 [88]. Id.

 [89]. Id. at 3274.

 [90]. Directive 2004/35, of the European Parliament and of the Council of 21 April 2004 on Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage, 2004 O.J. (L 143) 56 (EU) [hereinafter Directive on Environmental Liability].

 [91]. Article 3(1) of the Directive sets a strict liability standard for those activities it considers particularly dangerous. Id. at 60. The list of activities can be found in Annex III of the Directive. Id. at 70–71. In all other cases—that is, on cases of environmental damage caused by activities not considered dangerous per se—liability is based on fault. For an analysis of the effect of strict liability and fault liability on the prevention of environmental damage, see Michael Faure & Göran Skogh, The Economic Analysis of Environmental Policy and Law 24161 (2003).

 [92]. Directive on Environmental Liability, supra note 90, at 61.

 [93]. Commission White Paper on Environmental Liability, COM (2000) 66 final (Feb. 9, 2000). A White Paper “launch[es] a debate with the public, stakeholders, the European Parliament and the Council in order to arrive at a political consensus.” Glossary of Summaries, EUR-Lex, https://eur-lex.europa.eu/summary/glossary/white_paper.html (last visited May 18, 2019).

 [94]. Commission White Paper on Environmental Liability, supra note 93, at 15.

 [95]. Gerrit Betlem, Torts, a European Ius Commune and the Private Enforcement of Community Law, 64 Cambridge L.J. 126, 12829 (2005). For another example, check the 2004 Intellectual Property Directive, which, following the premise that tort remedies can complement regulation to ensure deterrence, aimed at harmonizing the sanctions, including private enforcement. Directive 2004/48/EC, of the European Parliament and of the Council of 29 April 2004 on the Enforcement of Intellectual Property Rights,  2004 O.J. (L 157) 45, 81 (EU).

 [96]. Commission Proposal for a Council Directive on Civil Liability for Damage Caused by Waste, at 15, COM (1989) 282 final (Sept. 15, 1989).

 [97]. Betlem, supra note 95, at 132. A similar claim can be made in relation to the European Convention on Human Rights given that articles 6 (right to a fair trial) and 13 (right to an effective remedy) offer a similar, albeit general, protections. Id. at 13335 (analogizing the question of private civil law remedies in the context of the Environmental Liability Directive with the Muñoz decision, in which the issue was whether a standard laid by E.U. law was actionable under national tort law).

 [98]. European Comm’n, Communication on Access to Justice at National Level Related to Measures Implementing EU Environmental Law 2 (2016), http://ec.europa.eu/smart-regulation/roadmaps/docs/2013_env_013_access_to_justice_en.pdf.

 [99]. Examples of provisions stating that damages to property are not dealt with by the legislation dealing with pure environmental damage include: Loi 2008-757 du 1er août 2008 relative à la responsabilité environnementale et à diverses dispositions d’adaptation au droit communautaire dans le domaine de l’environnement (1), Journal Officel de la Republique Francaise [J.O.] [Official Gazette of France], Aug. 2, 2008, p. 12361 (Fr.); Lei n. 19/2014 de 14 de abril Define as bases da política de ambiente, art. XIII, Diário da República n. 73/2014, I Série A. 2400 (2014) (Port.); Environmental Responsibility Law art. V (B.O.E. 2007, 255) (Spain). These provisions prevent the compensation of damages decided by the public authority. The victim is obliged, then, to claim for damages before the courts. The German regulation states such principle clearly when it declares the potential liability of the tortfeasor, although it defers the case to the general courts. The Environmental Liability Act sets forth the following:

If an environmental impact caused by an installation specified in Annex 1 causes a person’s death, injury to his body or damage to his health, or damage to an item of property, the operator of the installation shall have an obligation to compensate the injured person for the resulting damage.

Umwelthaftungsgesetz [UmweltHG] [Environmental Liability Act], Dec. 10, 1990, BGBl I at 2634, last amended by Gesetz [G], July 17, 2017m BGBl I at 2421, § 1 (Ger.), https://www.gesetze-im-internet.de/englisch_umwelthg/englisch_umwelthg.html.

 [100]. Nonetheless in 2005, Professor Gerrit Betlem predicted that a harmonization of E.U. law as a result of the Environmental Liability Directive based on the breach of statutory duty. See Betlem, supra note 95, at 145–48.

 [101]. López Ostra v. Spain, 303 Eur. Ct. H.R. (ser. A) 39, 39 (1994).

 [102]. See id. at 55.

 [103]. Id. at 54.

 [104]. Id. at 53–56 (quoting European Convention on Human Rights § 1, art. 8).

 [105]. Id. at 40.

 [106]. Id. at 59.

 [107]. Gómez v. Spain, 2004-X Eur. Ct. H.R. 329.

 [108]. Zarzoso v. Spain, Eur. Ct. H.R. (2018), http://hudoc.echr.coe.int/eng?i=001-180296.

 [109]. Gómez, 2004-X Eur. Ct. H.R at 341.

 

Just Transitions – Article by Ann M. Eisenberg

From Volume 92, Number 2 (January 2019)
DOWNLOAD PDF


Just Transitions

Ann M. Eisenberg[*]

 The transition to a low-carbon society will have winners and losers as the costs and benefits of decarbonization fall unevenly on different communities. This potential collateral damage has prompted calls for a “just transition” to a green economy. While the term, “just transition,” is increasingly prevalent in the public discourse, it remains under-discussed and poorly defined in legal literature, preventing it from helping catalyze fair decarbonization. This Article seeks to define the term, test its validity, and articulate its relationship with law so the idea can meet its potential.

The Article is the first to disambiguate and assess two main rhetorical usages of “just transition.” I argue that legal scholars should recognize it as a term of art that evolved in the labor movement, first known as a “superfund for workers.” In the climate change context, I therefore define a just transition as the principle of easing the burden decarbonization poses to those who depend on high-carbon industries. This definition provides clarity and can help law engage with fields that already recognize just transitions as a labor concept.

I argue further that the labor-driven just transition concept is both justified and essential in light of today’s deep political polarization and “jobs-versus-environment” tensions. First, it can incorporate much-needed economic equity considerations into environmental decisionmaking. Second, it can inform a modernized alternative to the environmental law apparatus, which must evolve to transcend disciplines. Third, it offers an avenue for climate reform through coalition-building between labor and environmental interests. I offer guidance for effectuating the principle by synthesizing instances of its embodiment in law in the Trade Act of 1974 (assisting manufacturing communities), the President’s Northwest Forest Plan (assisting timber communities), the Tobacco Transition Payment Program (assisting tobacco farmers), and the POWER Initiative (assisting coal communities), among other examples.

TABLE OF CONTENTS

Introduction

I. What is a “Just Transition”? Background and Rhetoric

A. The Transition to a Low-Carbon Economy and the Transition’s Potential Consequences

B. Defining a “Just Transition”

II. Can a Law of Just Transitions Be Justified?

A. An Environmental Theory of Just Transitions

B. Fossil Fuel-Dependent Communities: An Exemplary
Case Study for Just Transitions

C. A Political Economy Theory of Just Transitions

III. Just Transitions as Law: Filling in the
Contours

A. Federal Transitional Policies

1. The Trade Act of 1974

2. The President’s Northwest Forest Plan

3. The Tobacco Transition Payment Program

4. The POWER Initiative

B. Synthesizing Federal Transitional Policies

C. Locally-Driven Transitions

D. Additional Considerations for Pursuing Just
Transitions

Conclusion

 

Introduction

Political obstacles notwithstanding, many in the United States agree that carbon emissions must be quickly and dramatically reduced in order to avoid further catastrophic effects of climate change. Whether the path to a decarbonized world is more winding or straightforward, the effects of a transition to a low-carbon society will fall unevenly on many communities, which raises serious normative questions of justice.[1] In response to this concern, many call for a “just transition” to a low-carbon future.[2] While this phrase has gained significant traction,[3] its meaning remains unclear.[4]

“Just transition” has at least two primary usages. First, the phrase is used to mean that the transition to a low-carbon society should be fair to the most vulnerable populations.[5] The current fossil fuel-based economy has been characterized by inequality and environmental injustice, or environmental hazards that are inequitably distributed.[6] The new, low-carbon economy should not repeat or exacerbate these injustices; in fact, the transition is a new opportunity, indeed an obligation, to counteract them.[7]

The second meaning of “just transition” calls for protecting workers and communities who depend on high-carbon industries from bearing an undue burden  of the costs of decarbonization.[8] It proposes that the shift to a low-carbon economy will affect certain livelihoods disproportionately, and that this impact should be mitigated.[9] As one labor advocate explains, a just transition “means tackling climate change in a way that respects workers.”[10]

This Article demonstrates that the latter, labor-driven concept of a just transition is not only justified but is key to overcoming many of the obstacles that plague climate reform. Environmental policy remains thwarted by a variety of problems old and new. Longstanding “jobs-versus environment” tensions persist, as well as the more general notion that environmental protection represents a zero-sum game with winners and losers.[11] Even before the current presidential administration, scholarship contemplated the future of environmental law in an era of legislative stagnation.[12] Many have called for environmental law to adapt to the times by reshaping itself in various ways—letting go of some of its traditional emphases,[13] crossing over into other doctrinal areas,[14] and becoming more malleable in one manner or another in order to better interact with the political, economic, and social realities of a complex world.[15]

The labor-driven concept of a just transition is powerfully poised to address these deep concerns if scholars and policymakers embrace it. First and most clearly, it reroutes jobs-versus-environment tensions into a principle of “jobs and environment,” taking one of the longstanding thorns in environmentalism’s side and marshaling it toward productive pathways.[16] Second, by blurring the boundaries between environmental law and labor law, it can help align environmental decisionmaking more with the realities of complex social-ecological systems.[17] Third, by aligning environmental interests with labor concerns, it creates potential for coalition-building, thus informing both the ends of climate policy and the ever-elusive means for achieving it.[18] Finally, in an age of dramatic populist alienation,[19] it would inject much-needed economic equity considerations into environmental decisionmaking.

The Article also demonstrates that it is worth choosing one meaning for this term and that the labor-driven meaning makes more sense than the alternative. “Just transition” is a term of art that evolved in the labor movement, first known as a “superfund for workers.”[20] Its specificity gives it potency, and it has already gained traction in other disciplines and with major international organizations.[21] The broader usage, while important, seems redundant alongside comparable but better-known concepts, such as climate justice and energy justice.[22] It is confusing and less productive for different disciplines, and different scholars within law, to use the same term with different understandings of its meaning.[23]

I therefore argue that in the context of climate change, the just transition concept should be defined as some form of help for fossil fuel workers. Yet the broadest theoretical impetus for this help goes beyond environmental law. The just transition is an equitable principle of easing the burden that publicly-driven displacement poses to workers and communities who are highly dependent on a particular industry, especially a hazardous one. The theory has flavors of an estoppel concept, an unclean hands argument, or something akin to a call for takings compensation.[24] It is a principle of distributive economic justice, insisting that those displaced should not alone sustain their economic losses. This idea arises most frequently in response to environmental progress, but it bears relevance to other contexts as well.[25]

The prospect of a law of just transitions raises many questions, however, some of which labor law scholar David Doorey has begun to explore in a germinal article examining the desirability of a potential new field combining aspects of labor law, environmental law, and environmental justice.[26] How would just transitions relate to other models of distributive justice, such as environmental justice, which maintains that the burdens of pollution should be less discriminatorily and more equitably distributed?[27] How would it relate to sustainable development, which aims to reconcile environmental and economic considerations?[28] Would it merely create new employment opportunities when climate-related regulations affect a certain sector, or is it what one union president called it—“a really nice funeral”?[29] Must there be a causal link between regulatory initiatives and impacts on jobs, or does a just transition also concern industry contractions that stem from market forces?[30] Can the two be meaningfully differentiated?[31]

This Article attempts to answer these questions. Part I provides background necessary for understanding the just transitions concepts, disambiguates the two different usages of the term, and argues that legal scholarship should embrace the labor-driven definition. Part II explores three avenues that could serve as theoretical justifications for the labor-driven just transition principle in the context of climate change. Based on a theory of distributive environmental decisionmaking, the history of injustice in coalfield communities, and principles of political economy and interest-group theory, the discussion concludes that the labor-driven just transition principle is indeed legitimate, consistent with relevant norms, and necessary in the face of climate change. Part III synthesizes major federal transitional policies of the past several decades and argues that an effective law and policy of just transitions, especially when targeting regional displacement, must do more to untangle and address the complex, intertwined factors that shape communities’ dependency relationships with particular industries.

The stakes of this inquiry are high. Coal miners have become a symbol for broader national divisions, and commentators still strive to understand the “urban/rural divide” that made its way into the national consciousness via the 2016 presidential election. This analysis offers insights for the plight of coal miners and other rural communities, as well as certain workers’ relationship with environmentalism and climate policy. It also implicates a reconsideration of work, workplace safety, well-paying jobs, abrupt societal change, and private and public accountability for many workers’ abject vulnerability in a period that has been contemplated as a “new Lochner era.”[32] Major social and economic changes will continue to come. Scholars and policymakers would be well-advised to contemplate more robust transitional policy and baseline protections in light of the despair and instability unmitigated transitions can yield.

I.  What is a “Just Transition”? Background and Rhetoric

A.  The Transition to a Low-Carbon Economy and the Transition’s Potential Consequences

The term “just transition” tends to arise in two contexts. Some use the expression to refer to more general principles of equity in the transition to a low-carbon economy.[33] In other words, the shift to a low-carbon economy is an opportunity to rectify the injustices of the fossil fuel economy, and to not do so, or to allow inequalities to worsen, would itself effectuate injustice. On the other hand, some use the expression to refer to the nexus of labor and environmental reform, or the approach of taking work and jobs into account in or after environmental decisionmaking.[34] Yet both meanings derive from overlapping circumstances.

First, the fossil fuel-based economy characterizing the past century has had many casualties.[35] They run the full gamut from a child developing asthma in rural Australia,[36] to executions of community advocates in Nigeria,[37] to fishermen’s damaged livelihoods in the U.S. Gulf,[38] to victims of geopolitical machinations, including war.[39] People of color, indigenous communities, and people living in poverty have borne the worst burdens of the fossil fuel economy, in large part because of energy production.[40] The ultimate “externality” is, of course, climate change, the impacts of which we are already beginning to feel.[41]

The global community is currently experiencing substantial momentum toward a low-carbon, “clean energy” economy.[42] This transition is driven in part by a prevalent desire to mitigate climate change, both in the United States and elsewhere.[43] While the U.S. federal government is hostile to environmental regulation,[44] many U.S. states, cities, and institutions have confirmed their ongoing commitment to reducing carbon emissions.[45] For instance, “[d]ays after President Trump announced that he would be pulling the U.S. out of a global agreement to fight climate change, more than 1,200 business leaders, mayors, governors and college presidents . . . signaled their personal commitment to the goal of reducing emissions.”[46] The transition is also driven by market forces and concomitant evolutions in policy forces—with “widespread recognition, including among utilities, that low-carbon policy drivers are here to stay.”[47] Internationally, countries have taken the opposite approach to the Trump administration’s, such as with China’s plan to invest $360 billion in renewable energy by 2020.[48] Altogether, these factors have compelled some commentators to deem the transition to a low-carbon society “inevitable.”[49]

Nevertheless, a world with low carbon emissions does not somehow transform into a utopia. A shift to a clean-energy economy stands to perpetuate or exacerbate current patterns of inequity. Those patterns could specifically relate to low-carbon industries, for instance, through land theft to develop wind and solar farms, forced labor to extract the natural resources necessary to create solar panels, or impositions of health hazards from biomass fuels.[50] The patterns could also arise in other contexts in the low-carbon world, such us through inequitable access to clean energy.[51]

While these novel risks have begun to receive more attention in dialogues on climate change and the clean-energy transition, so, too, has the slightly more controversial question of “jobs.” “Jobs versus environment” tensions surround nearly every environmental policy debate.[52] Industry advocates and workers argue frequently that environmental reform will destroy individual livelihoods and communities’ entire way of life.[53]

Environmental groups—who have good reason to be cynical—have historically responded to these claims with dismissiveness.[54] Environmental advocates have argued that concerns about jobs are either industry propaganda or misinformed in some way.[55] Complaints that environmental reforms undermine jobs thus often encounter arguments that job losses are not as bad as claimed, or even if they are, environmental reform provides a net benefit to all that outweighs the cost of a few lost jobs.[56]

This tension raises the question: do environmental regulations cause people to lose their jobs—with “lost jobs” often used as a rhetorical stand-in for lost good jobs?[57] And if they do, does the benefit to the greater good offset the lost jobs? These questions are more complicated than they may seem. A first, critical point is that the changes that are necessary for the United States to reduce its greenhouse gas emissions adequately are dramatic.[58] Thus, climate reform that is meaningfully suited to climate change is not the same as the incremental environmental reforms of the past. According to one interpretation, carbon emissions in the United States need to decline by 40% over the next twenty years.[59] Methane and other greenhouse gas emissions also need to be reduced at some level.[60] “To accomplish this goal will require across-the-board cuts in both production and consumption in all domestic fossil fuel sectors”[61] and likely, in other industries as well.[62]

The “transition” is therefore a new era, which could involve a relatively rapid restructuring of society. This rapid restructuring could involve quicker, more extreme contractions of certain industries. According to economists Robert Pollin and Brian Callaci, in this scenario, “workers and communities whose livelihoods depend on the fossil fuel industry will unavoidably lose out in the clean energy transition. Unless strong policies are advanced to support these workers, they will face layoffs, falling incomes, and declining public-sector budgets to support schools, health clinics, and public safety.”[63]

Yet even if the transition to a clean-energy economy involves more incremental changes, it is worth contemplating whether the environmental movement has itself periodically had a misinformed stance on the question of work. As many have pointed out, environmental regulations have been shown not to result in a net loss of jobs for a given society and may in fact produce net gains in employment.[64] This may seem to support the “greater good” argument. Indeed, the clean-energy transition is anticipated to yield dramatic growth in the ever-burgeoning green energy sector, creating millions of new jobs over the course of the coming decades.[65]

However, regulations and other measures have at times also been shown to catalyze job losses for discrete regions and sectors.[66] Viewed through a legal geographies lens—which holds that questions of scale, scope, and place may show that what is “just” at one level is “unjust” at another[67]—this collateral damage of environmental reform does seem more problematic. As one commentator articulated, “[i]f you’re a coal miner in West Virginia, it’s not a great comfort that a bunch of guys in Texas are employed doing natural gas.”[68] While industry advocates undoubtedly exploit, or sometimes invent, such harms, it is possible that the environmental movement has also turned a blind eye to them.

Do job losses that are not clearly the proximate cause of legal reform, but that stem from the evolution of market forces, also deserve attention? Society did not, after all, provide special support to the employees of Blockbuster when mail-order DVDs and online streaming took their place because those services were more convenient and in demand. Why should workers who lose in the transition to a low-carbon economy be given preferential treatment over the many other workers who lose in diverse, market-driven scenarios, if policymakers are not intentionally causing them to lose for the greater good?

The question of causation is addressed in more depth in the subsequent discussion, in which I argue that, especially in the energy sector, it is very difficult to disentangle causal forces among law, policy, and market operations. But further, workers’ dependency relationship with a particular industry and lack of alternative options may be what trigger the need for a just transition; in other words, equitable factors may drive this theory just as much, if not more, than causal ones. Yet, again, these tensions also raise the question of a possible choice between more robust transitional policies and more robust protections for workers and communities in general.

B.  Defining a “Just Transition”

The idea of a just transition originated with the labor movement in the late twentieth century, in part in response to the environmental movement.[69] Labor and environmental activist Tony Mazzocchi is credited with coining the term, with the original version called a “Superfund for Workers.”[70] Referencing the superfund—a federally-financed program to clean up toxic wastes in the environment—suggested Mazzocchi’s proposal was an analogous remedial measure, but for human beings. It was based on the idea that workers who had been exposed to toxic chemicals throughout their careers should be entitled to minimum incomes and education benefits to transition away from their hazardous jobs.[71] Mazzocchi believed “that both nuclear workers and toxic workers, ‘because of the danger of their jobs and their service to the country, should be entitled to full income and benefits for life even if their jobs are eliminated,’” although he later gave in to pressure to reduce his demand to four years of support.[72] After environmentalists complained that the word “superfund” “had too many negative connotations,” the proposal’s name was changed to “[j]ust [t]ransition.”[73]

In the 1970s and through his death in the early 2000s, Mazzocchi and his associates were involved in creating “powerful labor-environmental alliances” that pursued the just transition campaign with the hope of addressing “the jobs-versus-environment conundrum.”[74] He was “the first union president to negotiate partnerships with Greenpeace and the environmental justice communities.”[75] He also developed educational programs for workers on the environment.[76] Mazzocchi’s advocacy thus forms the basis of the modern iteration of the labor-driven “just transition” concept. This foundation shapes the term’s modern usage as the idea that workers and communities whose livelihoods will be lost because of an intentional shift away from hazardous activity deserve some sort of support through public policy.[77]

Meanwhile, the broader usage of “just transition” is of less certain origin. It appears to be the plain-language interpretation of the labor movement’s term of art, thereby calling for “justice” more generally, and not just for workers. In other words, it emphasizes the importance of not continuing to sacrifice the well-being of vulnerable groups for the sake of advantaging others, as has been the norm in the fossil-fuel-driven economy. Thus, the broad concept of a “just transition” may in fact be even more radical than the narrow one because the former calls for a grand restructuring of societal inequality.

This discussion focuses on the labor-driven usage of just transitions and argues that legal scholars should do the same for two main reasons, beyond the fact that it is confusing for scholars in different spheres to be using the same emergent term with different meanings, and in addition to the theoretical discussion below. First, the labor-related usage seems to predate the broad usage and to have gained more traction. Major international organizations have embraced the labor-related meaning. Just transitions for workers have been adopted as goals by the United Nations Environment Program, the International Labour Organization (“ILO”), and the World Health Organization.[78] In 2013, the ILO published a policy framework for a just transition, which focused specifically on workers, noting that “[s]ustainable development is only possible with the active engagement of the world of work.”[79]

In addition, the labor-related usage’s specificity makes it stand out. The broad call for justice shares similarities with other models used to call for equity in the face of climate change, including environmental justice, climate justice, and energy justice.[80] This overlap may suggest that the broad concept has less of a niche to fill than the narrow one, and more risk of redundancy. By contrast, the labor usage’s narrowness may give it more potency.[81] In other words, it is not clear what a broad call for a just transition adds to these powerful and better-known concepts of justice, which all relate directly to the low-carbon shift.

Scholarly commentary complicates the choice somewhat because the literature seems split between the two usages. The broad meaning appears in at least some social science and legal scholarship. In a 2012 book entitled Just Transitions, two sustainability scholars defined a just transition as one “that addresses the widening inequalities between the approximately one billion people who live on or below the poverty line and the billion or so who are responsible for over 80 percent of consumption expenditure.”[82] Environmental justice scholar Caroline Farrell has characterized a just transition as one that avoids “the problems with the fossil fuel economy . . . [and aims] to create a truly just economy,” or as a “transition to an economy that does not create disparate environmental impacts.”[83]

Sociologists, political scientists, and several legal scholars who have explored the labor-related meaning provide a solid foundation from which to continue examining it.[84] They have also begun filling in the contours of what, exactly, this usage of “just transitions” means. Rural sociologist Linda Lobao interprets a just transition as one that “mov[es coal] communities toward economic sectors that offer a better future.”[85] Interdisciplinary scholars Evans and Phelan define it more broadly as “a political campaign to ensure that the costs of environmental change [towards sustainability] will be shared fairly. Failure to create a just transition means that the cost of moves to sustainability will devolve wholly onto workers in targeted industries and their communities.[86]

In the legal sphere, David Doorey’s definition emphasizes work somewhat more. He explains the concept as “a policy platform that advocates legal and policy responses and planning that recognizes the need for economies to transition to lower carbon economic activity, while at the same time respects the need to promote decent work and a fair distribution of the risks and rewards associated with this transition.”[87] Climate law scholar J. Mijin Cha describes a just transition as “protecting workers who are impacted by climate protection policy,” including by re-training workers and providing them with education funds.[88] Ramo and Behles emphasize the need to recognize communities’ economic dependency on high-emissions activity as those communities transition away from that activity, suggesting, like Labao, that a just transition “help[s] revitalize . . . fossil-fuel dependent communities.”[89]

Calls for just transitions appear to arise the most in union advocacy, which again lends weight to the choice of the labor-driven definition. The International Trade Union Confederation has described a just transition as a “tool the trade union movement shares with the international community, aimed at smoothing the shift towards a more sustainable society and providing hope for the capacity of a ‘green economy’ to sustain decent jobs and livelihoods for all.”[90] Generally, just transitions advocates “highlight the need to engage affected workers and their representative trade unions in institutionalised formal consultations with relevant stakeholders including governments, employers and communities at national, regional and sectoral levels.”[91]

Despite the appearance of “justice” in the name of just transitions, few legal commentators have delved more deeply into the legitimacy, significance, or traits of the idea of a just transition. The next Part reviews Doorey’s article, further characterizes the labor-driven just transition concept, and explores what principles may or may not support the concept.

II.  Can a Law of Just Transitions Be Justified?

This Part asks whether incorporating the just transition principle into law is a worthwhile endeavor, theoretically and practically. Exploring three potential justifications for doing so—one based on environmental theory, one based on the experiences of coal communities, and one based on strategic considerations—the discussion reveals that pursuing just transitions is not merely a nice thing to do. Rather, this discussion supports the conclusion that the concept not only fits neatly within the sustainable development framework—an internationally accepted framework for reconciling competing interests in environmental decisionmaking—but that it in fact injects a long-overlooked, much-needed consideration of economic equity.[92] This Part argues further that coal communities are particularly worthy of attention because of their history of combined exploitation and dependence. This Part’s third argument relies on interest-group theory to propose that the pursuit of just transitions is desirable because it could unite environmental and labor groups around the goal of a potentially more attainable and more equitable climate policy than prior efforts have secured.

David Doorey’s article is the first piece of legal scholarship to explore the worthiness and potential contours of a body of Just Transitions Law (“JTL”). He notes that labor law scholars have “mostly ignored” the effects that climate change will have on labor markets, while environmental law scholars have generally disregarded labor relationships.[93] Because neither legal field seems adequately equipped to handle climate change, he considers whether a new field is needed that combines the strengths of each.[94]

Doorey suggests that areas of common ground between labor and environmental scholarship might be ripe for doctrinal synthesis, such as the fact that both are in the business of “impos[ing] a countervailing power on unbridled economic activity.”[95] Yet he also notes that “jobs versus environment” tensions and other conflicting interests have tended to keep the fields apart.[96] Without coming to a firm conclusion as to whether JTL is worthwhile as a new legal field, Doorey does conclude that a just transition strategy is critical in the face of climate change, and that “[t]o implement a just transition strategy, governments need to design policies that cross existing government ministerial portfolios and legal regimes.”[97]

Doorey explores three potential forms for a body of law that marries aspects of labor and environment, including: 1) “[a] [l]aw of [e]conomic [s]ubordination and [r]esistance” that combines environmental justice’s and labor law’s overlapping recognition of power relations and embrace of collective, bottom-up resistance;[98] 2) a law of “[h]uman [c]apital or [c]apacities,” which would assess the fairness of rules, both environmental and labor-related, based upon whether they further human capabilities and freedom; and 3) an explicitly-named body of “Just Transitions Law,” (“JTL”), which would draw upon existing just transitions policy strategies, such as the ILO’s, aimed at joint consideration of environmental and labor goals, including pursuing cross-sectoral collaboration, incentivizing sustainable industries, and offsetting impacts to workers affected by environmental policies.[99]

For his third proposal, the explicit body of JTL, Doorey provides three “normative claims (NC) drawn from climate science, environmental law, environmental justice, and labour law.”[100] They include:

Firstly, climate change is a pressing global problem that market forces alone will not adequately address. Therefore, states should respond through public policy and law (NC1). Secondly, public policy should encourage a transition towards greener, lower carbon economies (NC2). Thirdly, there will be social and economic costs and benefits associated with climate change, and with the transitional policies aimed at responding to it, and those costs and benefits will also not be equitably distributed by market forces alone. Therefore, governments should seek to minimize the economic and social harms associated with the desired transition to a greener economy, and attempt, through law and policy, to distribute those harms and any resulting benefits in an equitable manner (NC3).[101]

This discussion begins with Doorey’s third proposal and adopts his normative claims for reference. While his first two proposals have great appeal, his third one seems to capture the already-existing evolution of this area of law.

However, like with the broadly-defined just transition described above, one might ask what this set of normative claims adds to the concept of climate justice. A centerpiece of the evolving theory of climate justice is public policy geared toward equitable sharing of the burdens and benefits of climate change through transparent consultation with diverse stakeholders.[102] Climate justice also espouses recognition of the fact that some communities are more vulnerable to the effects of climate change than others, and are more likely to be excluded from benefits.[103]

In order to capture the potency that more specific concepts may yield, to avoid duplicative efforts, and to recognize the labor movement’s role in formulating this theory of justice, I would add a fourth normative claim to Doorey’s third proposal, whether explicitly or implicitly, which is justified in more depth below: the needs of the workers and communities that have developed dependency relationships with high-carbon industries, often with substantial past and present socioeconomic costs, should specifically factor into calculating the equitable distribution of harms and benefits in the transition to a decarbonized economy. This consideration is not proposed as a competitor to environmental justice, climate justice, or any other framework concerned with vulnerability. It is, rather, a call for the specific recognition of work and existing economic dependencies in the decarbonization process, which have often gone overlooked.

This discussion does not take up the question of whether JTL should be an entirely new area of law. Like Doorey’s, it is intended as an “early contribution” to this emerging field.[104] The discussion therefore explores instead whether the just transition principle is worthwhile, and how it could be incorporated into law—which is perhaps also a worthwhile consideration as an alternative to establishing a new legal field.

A.  An Environmental Theory of Just Transitions

The discussion in this Section argues that the labor-driven just transition concept has a natural and important place within current prominent distributive environmental decisionmaking frameworks. In other words, this discussion seeks to legitimize the concept and situate it in relevant literature. The discussion shows that the idea is neither foreign nor frivolous in relation to environmental theory. But further, I argue that it adds a point of consideration that other frameworks have tended to overlook, suggesting all the more that it is a worthwhile idea.

The just transition concept, understood in the context of climate change, is a call for distributive justice in (or after) environmental decisionmaking.[105] In order to understand or define it, then, it is important to assess it in relation to existing models for environmental distributive justice. Sustainable development and environmental justice are two of the most prominent of these models.[106] Each model strayed from traditional environmentalism, which is largely focused on pro-conservation, anti-pollution measures, in order to try to establish a framework that takes more socioeconomic realities into account, including the need for equitable distribution of benefits and burdens.[107]

Environmental injustice was originally known as environmental racism, calling attention to the fact that communities of color bear a disproportionate burden of environmental hazards.[108] Sustainable development, meanwhile, is a forward-looking decisionmaking paradigm that seeks to harmonize conservation priorities with economic considerations as well as social equity.[109] While environmental justice adds a civil rights component to environmentalism, sustainable development aims to mitigate standard development by incorporating historically overlooked priorities into development decisions.[110]

The just transition concept exhibits a significant parallel with environmental justice in that both ideas were born as social movements in the late twentieth century in response to the environmental movement.[111] Environmental justice calls for racial equity (and other forms of non-discrimination), while just transitions calls for labor equity. The movements are thus not dissimilar in that each advocates a distributive component on top of traditional environmentalism’s conservation priorities. Another parallel is that each is a broad, equitable principle that is at times embodied in laws in different ways. Yet the movements and legal schemes associated with each concept have rarely interacted, in part because of conflicting priorities and cultural backgrounds.[112]

Sustainable development, as compared to environmental justice, has perhaps more direct applicability to the question of work. The sustainable development approach aims to “capture[] the interrelationship between the environment, the economy, and human well-being in the effort to meet ‘the needs of the present without compromising the ability of future generations to meet their own needs.’”[113] In other words, it is “a decisionmaking framework to foster human well-being by ensuring that societies achieve development and environment goals at the same time.”[114] Sustainable development directly aims to undermine the fossil fuel economy. It thus, in turn, creates the need for a “just transition,” in that it is fundamentally premised on a shift to renewable energy sources.[115] Yet it also may provide tools for ensuring a just transition because of its concern for economic and equity-related priorities.

While sustainable development as a theory faces many criticisms, it is “not simply an academic or policy idea; it is the internationally accepted framework for maintaining and improving human quality of life.”[116] For instance, based on the overall aim of sustainable development, international frameworks have adopted as goals both poverty eradication and addressing “[t]he deep fault line that divides human society between the rich and the poor and the ever-increasing gap between the developed and developing worlds . . . .”[117] Sustainable development’s actual implementation takes on many forms, as the approach “needs to be realized in the particular economic, natural, and other settings of each specific country,”[118] as well as each specific state or city. “The key action principle of sustainable development is integrated decisionmaking. Essentially, decisionmakers must consider and advance environmental protection at the same time as they consider and advance their economic and social development goals.”[119] This contrasts with conventional development, where environmental concerns historically arose only as afterthoughts.[120]

Sustainable development decisionmaking is often represented as a triangle. Its three points are the economy, the environment, and equity or social justice.[121] The points are a simplified representation of the three values or priorities that sustainable development seeks to reconcile.[122] The standard sustainable development triangle is represented in Figure 1.


Figure 1
.  Sustainable Development Framework

 

The triangle represents an accessible conceptualization of the harmony that the decisionmaking paradigm seeks to achieve. In turn, these three values are embodied in law and policy in varied ways. For example, a traditional building code, reworked through the lens of sustainable development values, could transform into a “green” building code, prioritizing materials with minimal environmental impacts and low-carbon energy sources. The “equity” prong might dictate that new housing developments, as an example, should not only be green, but also affordable.

Environmental justice and sustainable development may seem like they occupy different spheres of environmental theory, but Uma Outka has observed that they have the potential for synergy. She notes a risk of conflict between the two models as the broader sustainable development agenda might prove insensitive to environmental justice concerns.[123] For instance, at the project level, sustainable development and environmental justice can face tensions, such as if the siting of wind farms (comporting with sustainable development’s driving concern for carbon reduction) harms indigenous cultural resources (violating environmental justice’s concern for communities’ autonomous decisionmaking and the non-discrimination principle).[124] Yet Outka argues that environmental justice in fact refines sustainable development by adding the particular environmental justice conception of equity.[125] She concludes that for sustainable development to be consistent with environmental justice, the significant differences among renewable energy sources require more recognition and concrete definition, so that each pathway’s potential for inequity can be better understood and addressed.[126]

 Outka’s articulation of this relationship can thus perhaps be represented by Figure 2 below, which highlights environmental justice as an aspect of the sustainable development framework at the nexus of the environment and equity points of the triangle. In other words, environmental justice becomes another value that must be harmonized with other values in environmental decisionmaking, including the three Es. As a principle of environmental equity, environmental justice aligns with sustainable development at the nexus of sustainable development’s environment and equity prongs.


Figure 2
.  Sustainable Development with Environmental Justice Refinement

 

Figure 2 is not meant to suggest that environmental justice is the only refinement to sustainable development, or the only point of interest on the environment-equity leg. However, in a decisionmaking framework that is intended to manage complex scenarios, understanding these relationships can help inform the characteristics of normative paradigms. Environmental justice is a call for environmental equity, and it has a natural locus in the sustainable development paradigm.

When viewed through the framework of sustainable development, just transitions no longer seems like such a foreign concept to environmental law. Primarily, environmental decisionmakers already have a framework for considering questions of economic equity as they relate to environmental decisionmaking. Just transitions, with its concern for avoiding or mitigating inequitable impacts to livelihoods in environmental decisions, is ultimately a doctrine of economic equity. Thus, a natural place for just transitions is running parallel to environmental justice and in the analogous position along the economic and equity side of the triangle, as shown in Figure 3.


Figure 3
.  Sustainable Development Framework with Environmental Justice and Just Transitions

 

This visualization is powerful because it suggests that, like environmental justice, a just transition is simply a refinement to a framework upon which decisionmakers already rely. While it might also be said to have already existed along the economy-equity side, it has largely gone unrecognized. Just as environmental justice is a principle of environmental equity that must be harmonized with other values, the just transition is a principle of economic equity that should also factor into the calculus—and it appears to have a natural place within that calculus.

Another reason this visualization is powerful is that it builds upon increasingly vocal calls for environmental justice to inform the transition to a low-carbon society.[127] These calls, in fact, circle back on the broad meaning of the just transition—the idea that the decarbonization process must be done fairly in general.[128] One may be concerned that these paradigms might all conflict with each other in the transition, or pose difficult zero-sum choices. The visualization in Figure 3 shows that these principles are complementary, and in fact, bring environmental decisionmaking toward a more holistic picture of societal needs.[129]

This visualization may also help reconcile some of the tensions between sustainable development theory and resilience theory. Resilience theory has emerged as a counter-framework to sustainable development.[130] Resilience theorists’ criticisms of sustainable development are that sustainable development assumes stationary, controllable circumstances; potentially sanctions current patterns of harmful development and an ethic of “green consumerism;” and fails to account for complexity, or the interrelatedness of complex social-ecological systems.[131] This latter point is particularly concerning to resilience theorists in the age of climate change, which will involve more drastic changes in ecological and social regimes than previously seen.[132] Resilience theorists instead advocate decisionmaking paradigms that are iterative, or ongoing, rather than traditional planning processes; that involve “principled flexibility;[133] and that anticipate constant change in social-ecological systems.[134] Adaptive management and adaptive governance have been considered potential vehicles for pursuing resilience governance, although scholars agree that a gap remains between theory and practice.[135]

Although the rift may be large, perhaps the addition of environmental justice and just transitions to the sustainable development framework brings sustainable development a modest inch closer to resilience thinking. The more points of interest that are added to the sustainable development framework, the more sustainable development would seem to wield potential for decisionmaking that accommodates social-ecological systems. Figure 4 illustrates that the framework above can in fact represent a continuum of social, economic, and natural concerns.[136] While there are infinite points of interest on the continuum, environmental justice and just transitions show points of particular concern based on society’s historical and potential inequities. If one recognizes that the sustainable development paradigm could have infinite points, the next natural inference must be an acceptance of uncertainty because infinite interacting aspects of social-ecological systems could never be stationary.


Figure 4
.  Making Sustainable Development Work for Social-Ecological Systems

 

In any case, the frameworks above show how the just transition concept has a natural place with several prominent environmental theories of today. But it can also follow the path of environmental justice and sustainable development in that it may at times be a principle warranting contemplation, rather than all or part of a framework in and of itself. Both environmental justice and sustainable development are “normative conceptual framework[s]” that are in turn embodied in law in various ways, sometimes simply as policy goals.[137] Just transitions can join their ranks as such a principle as well, offering an additional equitable priority, or a more concrete framework for decisionmaking.

In general, environmental law scholars have increasingly recognized the need to account for the jobs question, rather than to dismiss it.[138] As Richard Lazarus articulates, “there has been at best only an ad hoc accounting of how the benefits of environmental protection are spread among groups of persons.”[139] Environmental law scholars have recently contemplated how to overcome the perception and reality of “zero-sum” environmentalism, in which some segments of society must lose, or think they are losing, in pursuit of environmental progress.[140] This realization has come about at the same time as the recognition that environmental law is overall inadequate in the face of climate change.[141] The placement of just transitions into the framework above helps address both these concerns. It provides a way to think about contemplating livelihoods in environmental decisionmaking, as well as making decisionmaking align better with social-ecological systems.

B.  Fossil Fuel-Dependent Communities: An Exemplary Case Study for Just Transitions

The discussion in this Section examines what, exactly, is meant by “fossil fuel-dependent communities” and why they have prompted so much interest in just transitions in the climate change era. Many communities that depend on high-carbon industries have a unique history and relationship to work, and many have borne profound costs associated with energy production for over a century.[142] Yet the rest of society has alternately encouraged, acquiesced in, or benefited from this hazardous, economically depleting way of life.[143] Based on these troubling circumstances, this Section argues that the labor-driven just transition concept is legitimate because it is fair to these specific communities. A critical point is to understand that fossil fuel-dependent communities were not born in a vacuum. They were created. This discussion uses Appalachia as an example, but its story is relevant to comparable scenarios throughout the country.[144]

As early as the 1700s, companies played a central role in developing isolated Appalachian mono-economies, or monopsonies, where workers and communities became hostage to desperate dependency relationships.[145] The dependence stemmed in part from a rush of speculators in the 1800s seeking to acquire Appalachian land.[146] Locals, mostly subsistence farmers, did not know the worth of the minerals under their land and sold property interests for well under market value.[147] “Others who refused to sell their land became victims of legal traps, such as being jailed and then offered bond in exchange for their land.”[148]

Appalachia evolved into what some scholars call an “internal colony” or a “sacrifice zone,” which was “created to provide cheap resources to fuel the rest of the country.”[149] Companies dominated land ownership and isolated communities from penetration by other industries.[150] Through isolating people and dispossessing them of land, coal companies sought to turn local residents “into a docile workforce” that lived and breathed extractive work, residing in company towns and coal camps and paid in “scrip” instead of money.[151] While company towns are no longer the norm, the effects of these relationships are still felt in Appalachia today. Yet this was all in the name of “the greater good,”[152] with fossil fuel communities serving as the nation’s cheap energy powerhouse.[153]

Serving as the nation’s energy powerhouse has been costly. For decades, coal miners have lost their lives in and because of the mines.[154] Some of these deaths were in major disasters that caught the public’s attention, but most of them were a regular procession of daily accidents and health harms.[155] These hazards are not a phenomenon of history, either. “Between 1996 and 2005, nearly 10,000 miners died of black lung disease.”[156] As of this writing, black lung rates have in fact been rising.[157]  Yet the costs have not been limited to miners themselves. Residents living near mountaintop removal sites suffer high rates of disease and morbidity.[158] In addition to compromised health and safety, residents of fossil fuel communities have seen the destruction of irreplaceable cultural and ecological resources, as well as entrenched poverty and limited economic alternatives.[159]

Yet throughout the evolution of this exploitative dynamic, these relationships were encouraged and actively supported by the rest of the country through law and policy, evolving with the knowledge and acquiescence of the larger political body despite intermittent recognition of Appalachian problems. When coal miners sought to improve their conditions in the early twentieth century, federal actors intervened on behalf of companies.[160] In Hitchman Coal & Coke Co. v. Mitchell, the Supreme Court sanctioned mine operators’ power to contract with workers to prevent unionization.[161] In the 1921 Battle of Blair Mountain, the United States Army intervened to stop an uprising of miners, after which the Army left West Virginia to resolve the conflict internally, much to the detriment of the miners.[162] Black lung, a “chronicle of a preventable disease that was not prevented,” was ignored by state and federal public health authorities for most of the twentieth century “[d]espite the fact that physicians working among coal miners in the nineteenth century recognized and called attention to . . . [this] public health disaster.”[163] These egregious conditions notwithstanding, throughout the twentieth century, tax incentives and subsidies to the fossil fuel industry became a part of law.[164] As of 2017, the federal government continued to support fossil fuel production with $14.7 billion in subsidies, and state governments provided a total of $5.8 billion in incentives.[165]

Meanwhile, coal communities’ suffering was not unknown. Congress made a show of helping Appalachian residents with measures such as the Surface Mining Control and Reclamation Act (SMCRA). Yet SMCRA “has fallen far short of its potential;[166] indeed, with provisions providing for oversight by states known to be dominated by industry,[167] it could hardly be deemed an earnest effort to remedy Appalachian suffering. Similarly, the Black Lung Benefits Act of 1973 nominally addressed black lung, only to help a mere 7.6% of claimants in “a system that miners, unable to attract attorneys and financially incapable of matching the coal companies’ development of medical evidence, wholeheartedly despise[d] as unjust.”[168]

U.S. society thus has a decades-long tradition of propping up the fossil fuel industry and acquiescing in its creation of exploitative mono-economies. Viewed in this light, workers’ and communities’ anticipation or hope that support might continue for their sole economic lifeline seems less unreasonable than if one views that anticipation standing alone in the context of today’s changed markets, or viewed through the lens of communities with more resources or alternative options.[169] The argument that fossil fuels are harmful and that people simply have to find other jobs overlooks a longstanding history of exploitation and isolation, an abusive tradition from which the majority has benefited. A swift, unmitigated shift away from these industries stands to exacerbate the injustices that fossil fuel communities have already experienced. The transition has, in fact, already begun, and fossil fuel communities have not fared well.[170] Coal country has already lost a substantial portion of employment opportunities, and with those lost jobs have come lost tax resources, businesses, population, and spirit.[171]

One might argue that this is the nature of economic developments: markets change and workers and communities who bear the losses of those transitions must adapt, evolve, and potentially relocate. Yet attempts to distinguish between the public and private spheres in this context ring hollow. First, fossil fuel workers and communities have been engaged in what should be characterized as quasi-public activity.[172] While their contributions to the nation’s energy supply were through direct relationships with private companies, those companies were empowered by the public. The workers’ and communities’ labor and losses fueled a public electricity grid and provided fundamental public benefits for which they bore immeasurable externalized costs.

Second, one would be hard-pressed to disentangle the diverse public and private factors that converge to shape discrete sectors, especially in the energy context.[173] Many have pointed to the cheapness of natural gas as a driving force undermining the coal industry in order to suggest that coal’s decline is a private phenomenon not warranting mitigation.[174] However, Congress’s decision to impose minimal regulations on the natural gas industry was an intentional public policy development that shaped the status quo in foreseeable ways.[175]

These circumstances illustrate that, if nothing else, principles of fairness and equity weigh in favor of a just transition for these communities. Yet these principles also implicate some of the basic premises of our legal system. Communities’ expectations and reliance have been encouraged, even coerced, through law and policy. While formal legal avenues have been of little help to them—to demand, for instance, the delayed closure of a plant, collective compensation for environmental degradation to the region, or meaningful assistance with the black lung pandemic—the ethical impetus to help these communities transcends a mere nicety.

Several lines of scholarship have insisted upon the materiality of expectations at the community level. Joseph Sax was concerned with community reliance and formal property law’s silence on communities.[176] He argued “that the law offered no opportunity even to raise a question about the non-economic losses incurred when an established community is destroyed . . . for ‘just compensation’ includes only the value of the economic interests taken.”[177] He noted that:

there is a widespread sense that community is important, and a willingness exists to protect community interests; yet there is no principle or doctrine to which to turn in those cases where, for whatever reasons, the people affected are unable to generate the political support necessary to induce an act of grace.[178]

Sax argued that “[t]he idea of justice at the root of private property protections calls for identification of those expectations which the legal system ought to recognize,” including at the community level.[179]

The concern for community reliance evokes the related concern that frustrated expectations can lead to social instability and political upheaval.[180] For instance, Sax argued that the public trust doctrine was not merely a state’s obligation to conserve natural resources, as many understand it, but is also a means of marrying customs with formal law in order to respect common expectations and ward off social unrest.[181]

This line of thinking seems to suggest that where formal law fails to recognize the meaningful nature of coal communities’ reliance upon their way of life, the lens of first principles illuminates the way of life as meaningful and worth respecting. The reasons for undermining that way of life seem meaningful too. Fossil fuel communities have already been sacrificed for the sake of collective progress through their energy production activities. They stand to be sacrificed anew if their majoritarian-encouraged dependency relationships are ignored in the transition to clean energy, as state and federal policy drivers continue to curtail or undermine these communities’ economic activities in the name of collective progress.[182]

While the majority’s willingness to destroy coal communities’ dependency relationships is not a “takings,” it nonetheless raises the prospect of a discrete minority being sacrificed for “the greater good”—an approach to progress that legal ethicists have considered at best morally questionable.[183] Indeed, when federal legislators passed provisions of the Trade Act of 1974 to offset displacement caused by reduced restrictions on trade,[184] one decisionmaker reasoned, “much as the doctrine of eminent domain requires compensation when private property is taken for public use,” increased fair trade required compensation to displaced workers.[185] “Otherwise the costs of a federal policy [of free trade] that conferred benefits on the nation as a whole would be imposed on a minority of American workers.”[186]

It might be suggested that Appalachia and other carbon-dependent communities are not unique in their situation. Workers in the United States are often displaced and left vulnerable for a variety of reasons including changes in technology, new trade regimes, other policy developments, or the absence of legal protections.[187] This comparison is worthwhile. The story of Appalachia, while unique in some respects, shares many analogies, as with tenants and sharecroppers who were displaced by the mechanization of the cotton harvest, plant employees who lost manufacturing jobs when businesses moved overseas, and aerospace workers who were displaced during the 1990s with the end of the cold war, to name some examples.[188] The question becomes one of drawing lines. Where takings analyses stop, economic transitions begin. We ask people to bear the costs of the latter, not the former, and by not recognizing property interests in work,[189] we disfavor the property-less in decisions as to who receives compensation.[190]

This line-drawing may make sense. Otherwise, it could become cost-prohibitive to pass new laws. Yet certain factors weigh in favor of contemplating either more effective transitional policies or more robust baseline protections for workers and communities. First, as technology continues to evolve and render more work obsolete, the future will be replete with ongoing displacement.[191] As more and more people and professions are displaced, it seems unrealistic to assume that the supply of work will match the demand for it. Second, the egregious ramifications of the transition away from coal indicate that asking those workers and communities to bear the losses, adapt, and relocate has simply not worked for a substantial segment of those communities. While such a proposed allocation of losses may make sense in theory, in practice, the result has been poverty, deaths of despair, and regional stagnation.[192]

To be clear, none of this discussion is intended to suggest that deep decarbonization should not be pursued as swiftly and effectively as possible. The question of livelihoods should not hold the broader community hostage to the dire fate associated with a failure to reduce carbon emissions adequately.[193] This is also not a call for some form of reparations, especially considering other communities, such as indigenous populations and the descendants of slaves, whose under-acknowledged exploitation also fueled national wealth in even more dire ways. The argument is rather that fossil fuel communities have already borne loss after loss to the benefit of others. To ask them to bear yet another disproportionate loss in the clean-energy transition on behalf of the rest of society would be to effectuate yet another distributive injustice. In other words, these communities should not be forgotten in the decarbonization calculus. They deserve a just transition.

C.  A Political Economy Theory of Just Transitions

This Section explores a pragmatic and strategic argument in favor of embracing the just transition concept. In short, the United States is in urgent need of environmental and climate policy reform at the federal, state, and local levels.[194] Reform is often unachievable, however, because of entrenched political obstacles.[195] This Section argues that the pursuit of law and policy informed by just transitions principles may be more achievable than more traditional modes of seeking environmental reform.

Most scholars now agree that environmental reform had a zenith of sorts, and that the zenith has passed.[196] The late 1960s and early 1970s saw the passage of the Clean Air Act, the Clean Water Act, the Comprehensive Environmental Response, Compensation, and Liability Act, and the Resource Conservation and Recovery Act.[197] Still today, these major federal statutes make up the foundation of the environmental legal apparatus. The reforms largely came out of a national social movement.[198] Reacting to works such as Rachel Carson’s Silent Spring[199] and the incident of the Cuyahoga River catching fire,[200] the public realized that their welfare in part depended upon some measure of environmental protection.[201]

Sporadic successes have been achieved since the peak of environmental reform. As recently as 1993, Daniel Farber observed how environmentalism’s successes undermined the idea that interest groups could warp governmental policy through lobbying.[202] He explained:

[A]ir pollution legislation benefits millions of people by providing them with clean air; it also imposes heavy costs on concentrated groups of firms. The theory predicts that the firms will organize much more effectively than the individuals, and will thereby block the legislation. We would also expect to find little regulation of other forms of pollution. Similarly, we would also expect firms to block legislation limiting their access to public lands. Thus, the two basic predictions are that environmental groups will not organize effectively and that environmental statutes will not be passed.[203]

Yet Farber concluded that “the reality is quite different.”[204] “Environmental groups manage to organize quite effectively. . . . . Nor, obviously, is there any dearth of federal environmental legislation.”[205] He thus argued that “the political system manages to overcome the inherent advantages of special interests.”[206]

A more recent article by the same author recognizes a largely different status quo, however. In his 2017 article, The Conservative as Environmentalist, Farber recognizes that interest groups do indeed now stand in the way of environmental reform.[207] He suggests that conservatives’ shift away from moderate environmental sympathies over the past several decades can be explained by the “emergence of a coalition of disaffected westerners and business interests (particularly in the fossil-fuel industry) supported by an interlocking network of foundations, donors, and conservative-policy advocates.”[208]

A movement does exist today that is not all that different from the environmental movement of the 1960s and 70s.[209] Much of the American public is deeply concerned about climate change.[210] The movements for climate reform and related principles, such as climate justice and energy justice, use activism, litigation, and lobbying to pursue much-needed changes.[211] Many successes have been achieved.[212] Most commentators concede, however, that progress to date has simply been inadequate to ward off the disastrous effects of climate change.[213]

Anti-environmental forces today seem to have become more powerful than in prior eras.[214] The fossil fuel industry manages to undermine the environmental movement even at the grassroots level.[215] Pat McGinley describes, for example, the so-called “War on Coal” campaign, a massive, industry-financed public relations effort “buttressed by think-tank studies” that has successfully fueled public antipathy toward environmental regulations.[216] According to sociologists Bell and York, despite its waning contributions to the economy and employment, the fossil fuel industry manages to “gain[] compliance from substantial segments of the public” by “actively construct[ing] ideology that furthers its interests.”[217]

As the fossil fuel industry and conservative politicians have joined forces, labor and workers’ groups have often sided with them.[218] According to sociologist Brian Obach, “workers are not typically the lead opponents of environmental measures.”[219] Rather, industry executives recruit workers with the threat of layoffs or total shutdowns of operations. In addition, as “a threat to corporate profits” is not particularly concerning to the public, workers also become the more sympathetic faces of environmental opposition.[220]

Commentators have observed the largely untapped potential of collaboration between environmental and labor groups. The longstanding “work-environment” rift often puzzles scholars.[221] While jobs-versus-environment tensions serve to divide the two camps, other areas seem like they should be unifying—for instance, workplace safety, shared concerns about basic human needs, and as Doorey observes, the fact that both fields serve as checks on what would otherwise be “unbridled” corporate activity.[222]

One explanation for the rift is environmentalism’s association with the middle class and upper middle class. In its early days, the environmental movement was spurred in large part based on a philosophy embracing a veneration for nature.[223] As one activist articulates,

environmental heroes like John Muir, Teddy Roosevelt, and Aldo Leopold—and the romanticizing of wilderness through art, poetry, essays, and music—created a catalyst for men to see communing with nature as a way of defining their manhood. Exploration, solitude, and game hunting became the foundation for saving and preserving nature. But for whom was nature being saved?[224]

As the activist suggests, this philosophy arguably disregards the needs of society’s less privileged ranks, for instance, by failing to prioritize issues such as immediate access to clean drinking water, or being overly dismissive of livelihoods that depend on natural resources.[225] Pruitt and Sobczynski have argued, for example, that poor, white rural residents may be seen as “trash[ing] pristine nature by their very presence.”[226]

Yet, in the instances when labor and environmental groups have combined their efforts, these efforts have proven quite potent. Many attribute the passage of the Clean Air Act and the Clean Water Act to a coalition between workers and environmental organizations.[227] A prior article, Alienation and Reconciliation in Social-Ecological Systems, examined the fruitfulness of collaborative partnerships between ranchers and bird conservationists on public lands.[228]

Compared with the fossil fuel industry, then, the modern environmental movement has two problems: (1) a power problem and (2) a branding problem. Pursuing more aggressive, concerted appeals to labor interests could help address both of these problems.

The power problem is evidenced in the modern environmental movement’s inability to penetrate the thick web of interest groups that benefit from impeding climate reform and other environmental measures.[229] The political process is indeed “dominated by the rent-seeking activities of specialinterest groups.”[230] Naturally, coalitions and alliances stand to fare better than interest groups that work alone. While outreach to the fossil fuel industry may involve mere tilting at windmills given the industry’s track record,[231] labor and environments’ overlapping interests may have more potential to give climate advocates more allies and leverage.

But further, joining forces with workers’ advocates could also help the environmental movement win more hearts and minds. As an example of why the branding of environmental reform matters, many conservatives said in one public opinion poll that they opposed the Obama administration’s Clean Power Plan because they thought it would cost people jobs.[232] If the environmental movement addressed the jobs concern directly and in coordination with labor advocates—which they could do by lobbying for reform through the lens of the just transition—they could proactively address one of the arguments against environmental reform.

A potential concern in addressing work and labor more directly in environmental advocacy is that such efforts could result in sustaining livelihoods in hazardous industries and delaying much-needed environmental action. However, as discussed below, it is not necessarily contemplated that just transitions law and policy must entail actually sustaining hazardous industries; the more important principle is instead attempting to offset or mitigate some of the losses to livelihoods and communities as those industries’ activities are curtailed. Further, even if some compromises were to be made, it is worth considering whether the movement risks letting the perfect be the enemy of the good, and whether compromise outcomes may still be preferable to substantively preferable outcomes indefinitely delayed by political obstacles.[233]

III.  Just Transitions as Law: Filling in the Contours

This Part asks what are perhaps the most challenging questions surrounding the prospect of embracing just transitions in law and policy: What, exactly, does a just transition look like? Who deserves a just transition? What are the avenues for achieving it?

A helpful starting point is the fact that the pursuit of just transitions is not entirely alien to United States law and policy. This Part therefore starts in Section III.A with a brief summary and critique of four of the most prominent instances when federal institutions have authorized transitional policy to address worker and community displacement: (1) the Trade Act of 1974 providing assistance to manufacturing workers displaced by reduced restrictions on trade; (2) the President’s Northwest Forest Plan providing assistance to timber communities displaced by reductions in timbering on public lands; (3) the Tobacco Transition Payment Program assisting tobacco farmers displaced by public litigation against tobacco companies in the 1990s; and (4) the Obama administration’s Partnerships for Opportunity and Workforce and Economic Revitalization (POWER) Initiative assisting coalfield communities in the face of coal’s decline.

Interestingly, only two of the programs—the Forest Plan and POWER—have an explicit environmental component. This suggests that in practice, the understanding of just transitions has not been simply as a corollary to environmental progress. Rather, the consistent conditions among these scenarios are (1) a dependency relationship between a community and an industry that is (2) undermined by some public action, or perhaps in the case of coal, public inaction. Section III.B therefore also explores other, non-environmental scenarios where just transitions may be warranted, such as the example of New York City taxi drivers being displaced by ride-sharing services, or of longstanding community residents facing displacement by gentrification. Section III.B also revisits the argument that the line between economic and legal transitions is often blurrier than some might suggest, indicating that a scenario should not necessarily require a clear act of direct public complicity in order to trigger a just transition.

Section III.C discusses instances of locally-driven approaches to just transitions and posits that these examples offer important insights alongside the federal programs, particularly since the federal programs have, as a whole, not been considered particularly successful (while the effects of the POWER Initiative remain to be seen as of this writing). Local land use planning processes and similar mechanisms help account for the complex, interconnecting factors that shape mono-economies’ dependency relationships. They thus may have benefits to offer as an alternative or complement to the standard practice of using federal agencies to implement transitional policy.

Finally, Section III.D offers additional thoughts as to how and when just transitions should be pursued and who should pay for them. Yet this discussion again raises the question of whether transitional policy is the answer for worker and community vulnerability in the face of climate change or in other contexts, or whether more robust baseline protections may be the simpler, more efficient approach. This latter approach may also be the fairer, more inclusive one, in that transitional policy directs resources to workers who are losing “good jobs,” while other workers, particularly disproportionate numbers of women and people of color in the service industry, have benefited inequitably from such jobs in the first place.

A.  Federal Transitional Policies

1.  The Trade Act of 1974

The Trade Act of 1962 established the Trade Adjustment Assistance Program (TAA), while the Trade Act of 1974 gave birth to the modern program still operational today.[234] The program has become a quid pro quo component of modern trade policy. That is, in order to open more trade avenues, more trade assistance for injured domestic workers is often a necessary political compensatory measure.[235]

Crafted in the name of fairness, the program’s goal is to provide aid to workers who lose their jobs, hours of work, or wages because of increases in imports.[236] Congress was “of the view that fairness demanded some mechanism whereby the national public, which realizes an overall gain through trade readjustments, can compensate the particular . . . workers who suffer a loss . . . .[237] Returning to the idea that certain forms of displacement are ethically similar to takings, even if not cognizable as such in law, a federal court observed that TAA was pursued in as “much as the doctrine of eminent domain requires compensation when private property is taken for public use. Otherwise the costs of a federal policy [of free trade] that conferred benefits on the nation as a whole would be imposed on a minority of American workers . . . .[238]

Individuals eligible under the program may file a petition to the U.S. Department of Labor within one year of losing work.[239] Once certified, workers are then eligible to apply for TAA program benefits, which are administered through state agencies.[240] The benefits include “weekly cash benefits, job retraining, and allowances for job searches or relocation.”[241] “According to [2011] White House statistics, the average worker receiving benefits is a 46 year-old male with a high school education who is the primary breadwinner for his family and has worked for at least ten years at a factory that is closing.”[242]

Since the program’s inception, however, studies have shown that trade adjustment benefits have simply not gone far enough to compensate displaced workers for their losses. In one survey of displaced shoe workers in the 1970s, researchers concluded that

even if benefits were granted to a larger number of workers, each individual would be compensated for only a very small portion of his actual loss. The actual payments have been characterized by organized labor as band-aid treatment, because the subsequent wage loss as well as the many nonmonetary losses from displacement are not directly addressed.[243]

 More recently, economist Lori Kletzer found that almost forty percent of displaced workers did not find new jobs within one to two years after a job loss resulting from increased competition.[244] Another economist described trade assistance programs as “a collection of ad hoc, out-of-date, and inadequate programs that provide too little assistance too late to those in need.”[245] Legal scholars—who tend to treat TAA as a component of international trade law—have also critiqued trade adjustment assistance programs. Some deem TAA “a grave failure,” for reasons including “failures at the administrative and state levels, to Federal incompetence, to lack of resources and outreach for displaced workers,” as well as the inadequacy of judicial review available for workers unfairly denied assistance.[246] Its flaws notwithstanding, many agree that the program is preferable to not offering assistance at all and that reforms may stand to improve it.[247]

2.  The President’s Northwest Forest Plan

The President’s Northwest Forest Plan (NWFP) was formed in the aftermath of a 1992 decision in which the U.S. District Court for the Western District of Washington imposed an injunction prohibiting over 66,000 acres of timber from being harvested on Washington public lands because of dangers the harvesting posed to the northern spotted owl.[248] The Ninth Circuit Court of Appeals upheld this and a series of related decisions.[249] The Clinton administration then developed the NWFP, aimed toward enhancing conservation in the region. In 1994, the Forest Service and the Bureau of Land Management adopted the NWFP.[250]

The circumstances surrounding the NWFP’s enactment were famously contentious.[251] This scenario is at times considered a classic case study of “jobs versus environment.” Timber harvesters were outraged based on the perception that the habitat of a single species should wield such an impact on their livelihoods. Predictions of “economic devastation” followed the court decisions, with fears of “a new ‘Appalachia in the Northwest.’”[252] Environmentalists, meanwhile, saw the decisions as a necessary conservation win.

The economic concerns were not fictional. According to one commentator, “[n]o economic analysis [could] ignore the suffering of some rural communities, which [bore] the brunt of the economic pain associated with reduced federally subsidized timber supplies.”[253] When the injunction issued, it threw “between 60,000 and 100,000 people out of work.”[254] The NWFP sought to address some of this pain:

[It] extend[ed] assistance to workers and communities, payments to counties to compensate for reduced income, removal of tax incentives for the export of raw logs, and assistance to encourage growth and investment of small businesses and secondary manufacturing. Similarly, the Economic Adjustment Initiative . . . provided over $550 million to aid communities and individuals affected by reduced timber harvests.[255]

The NWFP also illustrates the causal complexity of factors that influence regional decline. Because of automation, “many jobs in the federally subsidized timber industry were on their way out long before the owl was listed as threatened under the Endangered Species Act.”[256] Generally, “rural areas dependent on the federal land-based timber industry” were not faring as well as other regions as of the 1990s.[257] Nonetheless, federal actors saw fit to intervene in this scenario involving mixed technological, economic, and legal factors contributing to the decline.[258]

The NWFP “never truly satisfied the warring factions, the timber industry and the environmentalists.”[259] However, it was considered an achievement for the Clinton administration.[260] Much analysis of the NWFP’s implementation has focused on its ecological successes. Yet, in all, “the NWFP has been more successful in stopping actions thought to be harmful to conservation . . . than it has been in promoting active restoration and adaptive management and in implementing economic and social policies set out under the plan.”[261]

The NWFP provided for “payments to timber-dependent counties suffering from cutbacks” due to the law’s implementation in 2000.[262] Since the NWFP’s implementation, counties formerly dependent on timber harvests for tax revenues have received millions of dollars.[263] Today, many of these counties are considered to be “in crisis” because of curtailments in direct federal subsidies.[264] The NWFP was criticized as failing to “provide long-term economic growth and security” for former timber counties.[265]

3.  The Tobacco Transition Payment Program

The tobacco industry has several unique quirks, but the parallels between the tobacco industry and the fossil fuel industry are notable. Both industries have invested aggressively in science-denial and public relations initiatives, both have rendered entire communities dependent upon them, and both have seen major shifts in public awareness contribute to their decline.[266] In addition to increased anti-tobacco sentiment and knowledge of health risks among the public, a mass tort action against tobacco companies in the 1990s brought them to the brink of extinction—which perhaps signifies a parallel to ongoing climate-related litigation against fossil fuel companies.[267]

Because of the economic hardships associated with decreased tobacco demand and government pushback against the tobacco industry, in the late 1990s, a settlement between states and large tobacco companies provided for billions of dollars of economic assistance to be paid to tobacco farmers.[268] The ten-year Tobacco Transition Payment Program (TTPP) was created to “ease tobacco farmers’ worries” and give them “time to diversify their crop to include other commodities separate from tobacco, or to allow [them] . . . to cease planting tobacco altogether.”[269] The TTPP also terminated a federal price-fixing program that had supported tobacco farmers since the 1930s.[270]

The TTPP is often referred to as a “buy-out” program.[271]  However, the term is somewhat misleading because farmers were not necessarily paid to stop growing tobacco.[272] Tobacco producers received government assistance by signing up for the TTPP through the U.S. Department of Agriculture Commodity Credit Corporation, which “provide[d] payments to tobacco quota holders who voluntarily enter[ed] into appropriate contracts with the government”[273]—including for the cessation of tobacco production.[274] The TTPP provided eligible producers with ten equal annual payments “designed to transition tobacco producers into a free market for their produce.”[275]

 The program’s effects were mixed and may be the subject of debate. The number of tobacco farmers was reduced dramatically just after deregulation was implemented.[276] Each participating farmer received on average a total of approximately $17,000 over the course of the program, while 75% of payments went to the top ten percent of farms.[277] Some have suggested that these payments offered important “injections of cash” for struggling rural communities.[278] On the other hand, the program may have had the effect of shackling some farmers to their crops involuntarily, as many were “unable to break free of the cycle of debt” associated with restructured relationships.[279] Some farmers, in response to the program, actually expanded their production of tobacco.[280]

 The TTPP model may have some lessons to offer just transitions law and policy. The fact that the TTPP helped transition workers and communities away from a production activity that had been publicly subsidized for decades, with minimal public attention or controversy, seems like a success. At the very least, the TTPP recognized that the political majority was complicit in fostering farmers’ dependency on the hazardous activity through national legislative intervention since the 1930s, and complicit in undermining that dependency relationship.

On the other hand, the TTPP model’s slow-sunsetting approach may stand in direct tension with the urgency associated with decarbonization. It also seeme