2011 National Planning Conference: Bettman Symposium

Is There Value in Unused Land?

By Ann Dillemuth, AICP
APA Research Associate, Planning Advisory Service

The third session of the 2011 Bettman Symposium opened early on Tuesday morning with an intriguing question posed by Jan Laitos, an author and professor of planning and environmental law at the University of Denver: Is it time to redefine our relationship with the land and move beyond the limits of utilitarianism to declare a right of non-use for land and natural resources?

Laitos began his presentation by pointing out our seeming inability to change our policies of using resources in ways that will ultimately lead to catastrophe: We have thus far done a bad job of using land.

He  explained that we see land as having a use component — how we use it or limit our use of it — but that land also has a non-use component, or an intrinsic value beyond its use by humans. This second component, an ecocentric view that land has value irrespective of human use, has thus far been largely ignored through four generations of  law and policy, but might be the concept needed to create a fifth generation of laws to finally move us toward a more sustainable existence on this planet.

Laitos told the story of our history of resource use as based upon the philosophy of utilitarianism, in which all decisions are based on human welfare with wealth maximization the ultimate goal. The easiest way to maximize wealth is to exploit the natural resources that surround us, and indeed utilitarianism holds that to refrain from using resources is contrary to human values. Therefore, a use ethic dominates our conception of land and natural resources. Stock (non-renewable) resources, such as minerals and oil, are extracted and used for personal and economic gain; renewable commodity goods, such as timber and fish, are harvested and used for economic growth; and public environmental goods, such as air and water, are used as sinks for our wastes and pollution. This use component of land has been dominant through history.

According to Laitos, there are two main drivers of such aggressive resource use in the US. The first is laws and legal institutions that encourage use, such as statutes passed by Congress and state legislatures that declare public land available for resource extraction and give private landowners the right to "use and dispose of" their land. The second is economic forces which pressure us to use resources before someone else does. The result is that our stock resources are being depleted, our renewable resources are being removed at an unsustainable rate, and our public environmental goods are being polluted.

So what do we do? Historically, Laitos said, we have turned to law, and he described the four generations of legal responses with which we have thus far addressed resource exploitation. The first generation of resource use laws was enacted to restrict our present use of resources in order to ensure our future use of those resources. This view completely ignores the non-use component of resources. As humans began to realize that we gain environmental and health benefits from non-use and non-pollution of resources, we developed the second generation of anti-pollution, indirect-use value laws, including the Clean Air and Clean Water Acts. However, undeveloped land holds further benefits: the recreational and psychological benefits that we gain from natural areas. This realization led to the third generation of nonconsumptive recreation and preservation laws, such as those which preserve open space or protect national parklands. Unfortunately, these laws have not been able to prevent resource depletion and deterioration; we still face climate change, the deterioration of natural systems, deforestation, and species extinctions.

Recently, a fourth generation of laws has been proposed to address the failures of the first three. These laws would seek to protect natural capital and the ecosystem services that natural systems provide, and would declare a clean and healthful environment as a basic human right. The problem, Laitos explained, is that this fourth generation of laws still retains the anthropocentric focus that has been the Achilles' heel of the first three: all decisions for non-use of resources are made because of the benefits to humans. This viewpoint rests on two assumptions: first, that there is no intrinsic value in land or resource independent of human use, and second, that humans occupy a privileged place on this planet and all resources exist to serve us.

Fortunately, there is a growing recognition of nature's non-anthropocentric, or ecocentric , value, and a growing belief that this should be protected from human use. This realization, Laitos announced, is leading to a fifth generation of ecocentric non-use laws that recognize the value of nature to the planet, irrespective of its use. Unfortunately, this concept goes against our entire understanding thus far of economics, where all decisions are analyzed relative to human use. If we are to survive, however, we must consider the intrinsic worth of natural resources.

Laitos then provided four examples of recent decisions that exemplify this fifth generation of resource law. The first, from Texas, was a court decision to prevent the Neches Wildlife Refuge from being repurposed as a drinking-water reservoir for the City of Dallas — not to preserve any special recreational value of the refuge for people, but simply to preserve the refuge as a resource of intrinsic value. The second example was a court decision to prevent Colorado's Crested Butte ski resort from expanding to nearby Snodgrass Mountain, not because Snodgrass had any special aesthetic or recreational value to humans, but simply for its own sake.

The third example, also from Colorado, was Shell Oil's decision not to dewater the Yampa River for oil shale development, but rather to let the river continue to run through Dinosaur National Monument unimpeded. Finally, the fourth example was a Colorado court decision to prevent oil and gas development in the Baca National Wildlife Refuge in order to protect the refuge's prairie dog population as vital to the functionality of the refuge ecosystem.

Along with these court cases, Laitos named several federal and international laws that likewise are beginning to acknowledge eco-centric non-use values: the Endangered Species Act, the National Wildlife Refuge System Improvement Act, CERCLA natural resources damage claims, and the United Nations' Charter for Nature.

In conclusion, he asked what might come next? Laitos provided three suggestions: first, we could empower private parties to act on behalf of natural resources to enforce environmental actions; second, as theorized by Eric Freyfogel, we could modify our private property laws to respect non-anthropocentric values and impose upon landowners a fiduciary duty to do so; and third, that we could give land and natural resources their own rights and legal interests, to be asserted when humans raise their right of use.

No matter how difficult or far-fetched these suggestions seem, Laitos concluded, we need to be creative and rethink our current relationship with natural resources to move beyond our current unsustainable land use paradigm.

Send an e-mail to WebsiteEditor@planning.org for permission to reprint this article.