by Eric Freyfogle
reviewed by Caroline Pufalt
Bounded People, Boundless Land, subtitled Envisioning a New Land Ethic, is a modest sized book that takes on a huge and difficult topic. Many environmental issues involve controversy surrounding private property rights and responsibilities. Given the almost sacrosanct stature private property holds in sectors of our society, private property rights seem to present an enormous stumbling block to environmental protections. The banner of private property rights may be used by individuals to avoid regulation, or it may be used by timid government officials as an excuse for inaction. But author Eric Fryefogle is not timid and he takes this issue head on.
Freyfogle is well qualified to do so. He is a law professor at the University of Illinois, specializing in property and environmental issues. His expertise in this area has given him a broad view of property rights issues in the US. He is a midwesterner and many of his examples are drawn from the plains, woods, and rivers in Illinois and surrounding environs. This makes his book especially interesting to read. One can often read about land use problems in the west, thus it is nice to have examples closer to home.
To begin a conversation regarding property rights from an environmental standpoint, one needs to have an idea of what one desires to protect. Often that includes a concept of land health. Freyfogle uses Aldo Leopold's classic concept of land health as a starting point. Leopold focused on the land's basic needs of soil integrity, water quality and flow, and a native plant and animal population as critical to land health. As one might imagine, consensus on what land health means in individual cases is not always easy to reach. But Freyfogle points out that it is not a definition based on personal preference, choices need to be made in conjunction with scientific information about ecological needs.
Understanding land health involves a broad perspective that crosses the many ownership and political boundaries we impose on the land. It also crosses time barriers as the land will outlive all our individual choices. Thus, when we impose unbridled individual property rights to land owners, land health may be ignored.
Freyfogle examines the evolution of property rights in the US. He exposes how extremists like Richard Epstein arrive at their conclusions regarding the issue of takings. Epstein is a libertarian who views virtually any government regulation as a taking and his writings have been the inspiration of much property rights rhetoric in recent years. In Epstein's world many of the basic safety and health standards we take for granted would be at risk, as well as ecological health standards. Many who use the banner of takings are unaware of the rather dark vision of their spokesperson.
But there are other examples and legal precedents in the US that point to a more moderate approach and an approach flexible enough to encompass evolving understandings of ecological health and its tie to our overall well-being. Freyfogle sees in those traditions a chance to forge a new ethic of land ownership. Included in that new ethic needs to be an appreciation of the natural role of individual pieces of land within a larger landscape. Wetlands, for example, need to be understood as providing flood control, wildlife habitat, improving water quality, etc. Landowners need to respect those functions and the community may set appropriate standards.
That goal can only be reached if citizens understand its importance. Therefore Freyfogle advocates the hard work of laboring on local land use issues in a manner involving land owners that will create the basis for better land use. He uses the work of the Nature Conservancy and many citizens along the Mackinaw River in Illinois as an example.
Freyfogle argues that the best land stewardship often comes from landowners who take the time to know their land intimately. However, in today's world this local knowledge is often challenged by the economic pressures of development, suburban sprawl, large international agricultural or timber companies, etc. Although many property rights advocates decry national standards, it is often those standards that can protect local entities from more powerful forces. Because of this Freyfogle envisions a blend of broad based standards tempered with the knowledge of local conditions as a good mix for achieving the goals of land health.
Freyfogle also addresses the issues of compensation. Extreme property rights advocates demand maximum compensation for virtually any inconvenience to landowners. Clearly, there is no requirement for compensation for measures taken to avoid pollution. Polluting is a harmful activity that the community has the right to ask all landowners to avoid. But on issues like development the matter is less clear due to the problem of fair distribution. Some types of development, such as that in sensitive habitats, are to be avoided in virtually all cases. Therefore, a restriction is fair to all landowners. Fairness is more difficult to reach in other cases. There is a certain degree of uncertainty in any ownership situation and the community is not required to cover individual landowners for every environmentally based cost. Freyfogle examines some more innovative ways to ensure fairness, such as regional development credits that could be traded within defined areas.
Bounded People, Boundless Land is a pleasure to read. Freyfogle is able to discuss legal distinctions in a manner the layperson can understand and endure. His references to writers such as Wendell Berry, Aldo Leopold, and Robert Frost add a poetic perspective.