No one can know the founders' "original intentions" on any number of issues, or what they might have thought about those of our time. But we know that they would not have wanted us to end the bold experiment they launched in self-governance or jeopardize the rights and liberties of posterity. And they certainly would not have wished us to risk the future of life on Earth for any reason at all. But they gave us no formula for governance, only the example of an intrepid, ingenious, pragmatic, and partial experiment in democracy.
The founders responded courageously and brilliantly to the challenges of their time, but those pale beside what we can anticipate in the century ahead. They could presume a stable climate and the resources of a mostly untouched continent to meet the needs of a vastly smaller population that lived predominantly on current sunlight, albeit often carelessly. We, by contrast, are a population of more than 300 million and will grow perhaps by another 100 million before our population peaks. We are an island of affluence in a world of 6.8 billion that will peak, perhaps, at 9 billion. We live on the remainders of once vast natural stores of minerals, soils, and forests. We are powered mostly by ancient sunlight in the form of coal and imported oil. We have technology that the founders could not imagine, but that prowess carries risks that would have given them reasons to act more cautiously than we do. All of this is to say that the challenges ahead differ in scale, complexity, velocity, and duration from any we have faced before. Our response, accordingly, must be at least as ingenious, wise, and adaptable as theirs was to the challenges of creating a republic in their time.
Like the founding generation, we need a substantial rethinking and reordering of systems of governance that increase public engagement and create the capacities for foresight to avoid future crises and rapid response to deal with those that are unavoidable (Grant, 2006, pp. 221-237). In the duress ahead, accountability, coordination, fairness, and transparency will be more important than ever. We will have no slack left for corruption, cronyism, secrecy, and incompetence. We will need governments at all levels, as Peter Senge says of business, with "a more robust organizational ecology . . . that is in tune with the larger living world and more capable of confronting the host of Industrial Age imbalances threatening our biosphere and our societies" (Senge, 2008, p. 356). We founder, however, in the effort to reform governments, mostly because of the power of vested interests and the lack of a sense of urgency. As a result, dozens of blue-ribbon commissions over many decades have made recommendations to improve the performance of various aspects of the federal government, to little lasting effect. They mostly gather dust on the shelves of the Library of Congress.
Even with a more rational and better-informed citizenry and improved means by which its will is expressed, is it possible to improve the performance of government? For many raised on the ideas of Ayn Rand and Milton Friedman, and inclined to believe campaign slogans promising to lower taxes and get government off our backs, the answer is no, mostly because of the alleged incompetence of one government agency or another or because of stories about the behavior of an obscure overbearing bureaucrat. Some of this is pure fantasy and some is the result of self-fulfilling prophecies, but most of it is, in economist Eban Goodstein's words, "a self-consciously manufactured, anti-government ideology that has paralyzed our nation" (Goodstein, 2007, p. 141). Over the last two decades, the upshot is that some agencies and functions of government, like the congressional Office of Technology Assessment, were abolished. Others deemed inconvenient but politically popular were put on starvation rations and staffed with people who did not believe in government. But other parts, notably the military and surveillance functions, were force-fed. Unsurprisingly, with less money and leadership, morale in many agencies plummeted and much of the federal government performed dismally as predicted, justifying still more budget cutting. As a result, the present administration faces a long rebuilding effort to restore morale, competence, professionalism, and purpose to many federal departments and agencies.
It is possible to undo the damage of decades of neglect and to equip government to meet the conditions of the long emergency. But to do so will require creating the capacity necessary to solve multiple problems that cross the usual lines of authority, departments, and agencies as well as those between federal, state, and local governments. In the long emergency, governments at all levels will have to be smarter, more farsighted, more agile, and more strategic. That does not necessarily mean a larger and more intrusive role, but rather one that steers more effectively by incremental adjustments and not by revolution.32 We will need to build new alliances between the public, nongovernmental organizations, local and state governments, and business. Above all, government must enable creative leadership at all levels of society, and it must lead first by example, not simply by fiat. It must help catalyze the redesign of infrastructure, food systems, communities, transportation, and energy systems that are resilient and secure by design. Every increase in local capacity to grow food, generate energy, repair, build, and finance will strengthen the capacity to withstand disturbances of all kinds. Distributed energy in the form of widely disbursed solar and wind technology, for example, buffers communities from supply interruptions, failure of the electrical grid, and price shocks. Similarly, a regionally based, solar-powered food system would restore small farms, preserve soil, create local employment, rebuild stable economies, and provide better food while reducing carbon emissions and dependence on long-distance transport from distant suppliers.33 The primary goal in rethinking development and economic growth is to create resilience—the capacity to withstand the disturbances that will become more frequent and severe in the decades ahead.34
The last time we in the United States tried to do anything at the national level about land use policy was in 1973. That limited effort was a bill (S.268) introduced in the U.S. Senate by Henry Jackson that aimed only to provide funds for those states bold enough to engage in land planning. Toothless though it was, the bill was defeated with much patriotic chest thumping. And the Republic still stands, or more properly sprawls, having reportedly lost an average of one million acres to badly planned "development" each year ever since and another million or so to soil erosion.
In truth, we barely keep track of such numbers, preferring to take comfort in the total land reservoir of 2.2 billion acres that has so far buffered us from the consequences of bad judgment and the absence of intelligent planning. But the true costs of land lost to development and agricultural mismanagement are considerably larger even than the little that we do count. First, sprawling development requires more roads, wires, pipes, concrete, and materials than does more condensed development or "planned unit development." A 1974 report by the president's Council on Environmental Quality concluded that "planned development of all densities is less costly to create and operate than sprawl" (Council on Environmental Quality, 1974, p. 7). Second, sprawl requires lots more energy to move more people and goods longer distances, and thereby commits this and other land-use intensive nations to use more oil than they otherwise would need, leading to foreign policies predicated on dependence that lead in turn to belligerence or begging. Third, sprawl was often financed on a foundation of sand now washing away in a tsunami of bad debt and insolvency. Fourth, sprawl is bad for our health. Children have to be hauled to soccer practice or to school, thereby beginning a vicious cycle that leads to obesity and future health costs for Type II diabetes, heart disease, and less familiar ailments (Frumkin, Frank, and Jackson, 2004). Sprawl tends to disconnect children from nature, causing what Richard Louv calls "nature deficit disorder" and mental problems that arise
Box 1.1. (continued)
from the lack of healthy contact with living things (2005). We know as well that sprawl destroys natural habitats and is a main driver of the loss of species. Sometimes smarter development can lessen impacts on wild habitats, but the aggregate effect of any new development is probably never positive. And finally, sprawl contributes to the use of fossil fuels and to the loss of carbon sinks (including forests and soils) that are driving climate change.
The news about land in the Fourth Assessment Report from the Intergovernmental Panel on Climate Change is grim, as noted above. Assuming that we are able to cap the warming below a 2.0°C increase, land-use changes, nonetheless, will be dramatic if still somewhat conjectural. Sea levels will continue to rise, perhaps for another 1,000 years, inundating coastal regions. Larger storms will batter coasts, and bigger storm surges will reach farther inland. Mid-continental areas will likely become hotter and dryer, possibly leading to the abandonment of millions of acres that were once breadbaskets. Rainfall events will become larger, with more floods like those in Iowa in June 2008. More frequent tornadoes will stress our emergency response and rebuilding capabilities. Some inland lakes will lose much of their present volume, radically altering shorelines. Lake Erie, for one, is projected to lose 40 percent of its present volume by 2050. Forested regions will be degraded by larger and hotter fires until little is left to burn.
John Locke and others from whom we derive our foundational ideas about land law reckoned with none of this. For Locke, land became private property once someone in the distant past mixed their labor with the land. More than three centuries after Locke, defenders ofprivate property such as legal scholar Richard Epstein propose that property rights ought to be essentially inviolable. The right of governments, then, to take privately held property ought to be confined to a small number of instances in which the taking redounds to the larger good, not just to a larger government (Epstein, 1985 and 2008). The upshot for Epstein and others of his persuasion is that the property rights of farmers, developers, private landowners, and corporations engaged in mining, logging,and energy extraction ought to be beyond the reach of government except in the most extreme cases of public need. Epstein's objections notwithstanding, the law has in fact been excessively kind to the rights of individual and corporate owners of land under the presumption that seizure of privately held land for public purposes ought to be compensated as an otherwise unwarranted taking proscribed by the terms of the 5th and 14th amendments to the U.S. Constitution. But the institution of private property, despite its many virtues, has often sacrificed community goods under the guise of protecting freedom (Freyfogle, 2003).
Property law and land policy built over the past three centuries presumed that climate would be more or less stable and that climate was God's business anyway, not ours. Human-driven climate destabilization, however, will dramatically challenge our views of land, private ownership, and public necessity. Global warming will lead to the inundation of coastal areas and larger and more frequent storms. These will create demands for expensive remedies, including massive earthworks built on land taken from private owners and funded by raising taxes. But at any more than a one-meter rise in sea level, millions of people will have to be moved inland here and elsewhere, and flooded property along low-lying coastal regions will be worthless. So, too, will land in mid-continent areas that will likely dry out under prolonged drought and heat. It is difficult to imagine where climate refugees go to find relief or whose property is to be taken to provide land for housing and new infrastructure. Complicated and bitter disputes will attend proposals to transfer water from, say, the Great Lakes to the Southwest or Far West suffering permanent drought. Liability issues pertaining to the mounting damages from climate change will grow increasingly contentious, rather like the tobacco lawsuits only more so. Like the tobacco companies, no company engaged in extraction and sale of coal, oil, or natural gas can say that they did not know the consequences of what they were doing.
Box 1.1. (continued)
John Locke's view of property rights has been particularly influential in the development of property law, but there is another and less appreciated aspect of Locke in which he argued that: "For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others" (emphasis added; Locke, 1965, p. 329). Men were entitled only to "As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to others. Nothing was made by God for Man to spoil or destroy" (p. 332).
In a mostly empty world such caveats were conveniently overlooked. But in a "full world" they will become more important, and they raise many complexities. For example, ownership of land, whether by corporation or individual, is singular, but "as much and as good" applies less clearly to any single entity, hinting at something more like collective rights of a community or even later generations that Locke did not discuss.
What does it mean, for example, for one generation to leave as much and as good for later generations? What might that standard imply for land law largely built on the rights of the living? Application of that standard leads to consideration of how to preserve land and its health for subsequent users and of the conditions that affect land, such as temperature and rainfall, presumed by Locke to be outside our control and responsibility. It is not difficult to extend the argument to include limits on activities that violate the standard of "as much and as good" more broadly to those factors that threaten subsequent generations' access to food, water, and security against storms magnified by the climate-forcing actions of earlier generations.
This leads to a broader interpretation of "takings" applicable to cases in which future generations could be deprived of life, liberty, and property without due process of law. The law as presently interpreted provides grounds neither for solace nor recourse against inter-generational takings, partly because of the complexity of assigning liability, establishing harm, and adjudicating the interests of the parties, one ofwhom does not exist and the other being too diffuse to name. But such perplexities do not diminish the reality of the deprivation.
If one accepts the possibility of intergenerational takings and the limits of remedy available in the present law, the proper course of action is to be found in the arcane and much depreciated activity called planning and in its enactment as effective policy. In plain language, we—the present generation—would have to decide what is properly ours, and further decide not to transgress that line. We would have to further decide the policy means by which to enact those restrictions on all levels of land ownership. In economist James Galbraith's words, planning to prevent the worst of climate change will "empower the scientific and educational estate and the government . . . it must involve a mobilization of the community at large, and . . . will impose standards of conduct and behavior and performance on large corporate enterprises" (2008, p. 175).
The idea of national planning is not as far-fetched as it might first appear. We developed comprehensive national plans to mobilize and fight two world wars. Now we face larger challenges. Climate change, the end of the era of cheap fossil fuels, population growth, and ecological degradation are converging to form a global megacrisis for which there is no precedent. But the present policy and legal apparatus for managing land, air, water, energy, and atmosphere in the United States and globally is fragmented, incremental, reactive, and short-sighted. It is imperative that we extend policy and legal horizons to deal with larger systems over longer time periods, much as envisioned in 1969 in the National Environmental Policy Act (NEPA), which requires federal agencies engaged in activities that have the potential to significantly harm the environment to assess environmental impacts, including potential harm to later generations, and identify "irreversible and irretrievable commitments." NEPA was a step toward the kind of integrated and systemic policy planning that we urgently need, but to our great detriment it has been largely relegated to obscurity and ineffectiveness. The principles of NEPA ought to be dusted off, updated with current scientific knowledge, and serve as the basis for reconsidering land use law, beginning with the management of the roughly 700,000,000 acres of farm, rangeland,
Box 1.1. (continued)
and forest lands. And the three essays that follow below sketch the case for extending our planning and policy horizons out 50 years or more in each of these areas.
As the grip of climate change tightens, however, we may discover that present law is inadequate to protect either the present or future generations. It may be that the entire system of ownership will have to be extensively modified in favor of what Peter Brown calls "the trust conception of government," which draws much from Locke's "as good and as much" standard (1994, p. 71). Brown and others, including legal scholar Eric Freyfogle, propose that land law be broadened to include the wider community of life and extended in time to the include rights of future generations. In important respects this is a return to the ancient traditions of English law embodied in the Magna Carta, which included two charters. The first concerned the political and juridical rights of the nobles; the second, and lesser known, was called the Charter of the Forest and guaranteed the rights of people to use the forest and all of its resources as common property (Linebaugh, 2008). It was an economic document that rested on the obvious fact that political and legal rights are meaningless unless undergirded by guarantees to food, water, and materials.
The English commons was eventually whittled down by the conversion of common lands into private property, a process known in history as enclosure. In our time the age-old struggle between enclosure and public access to the commons continues, but at a global scale. The battle is now being fought over control of the common heritage of humankind, including forests, freshwater, the oceans, minerals, genetic resources, the atmosphere, and climate stability. In each case, the powers of exploitation propose to fragment whole systems into pieces, extend the rights of private ownership over common property resources, preserve the domination of a single generation over all those to come, and shorten our policy attention to a few years. The challenge, as noted by poet Gary Snyder, is to create the policy and legal basis that works "on a really long time frame"—"even a few centuries may be insufficient"— so that there will be as much and as good for others (2007, p. 40)
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