Vantage Point: Legal Issues Surrounding Property

Property—both literally and figuratively—is the foundation for many of our legal constructs. Property can evoke a sense of place, security, wealth, and worth. It is something to trade, to do something with, or to put to use. Property can also be something that can be taken away or lost. It can describe something concrete and tangible—a place or thing—or something esoteric—a concept or theory. The articles in this issue run the gamut, addressing how property is impacted, defined, or used in relationship to the environment.

We start on the theoretical side with an article that challenges us to think about a constitutional “revolution” regarding relocating communities due to climate change. Ira Feldman and James R. May explore whether the U.S. Constitution is equipped to manage legal issues associated with managed retreat for climate adaptation, including people’s displacement from and loss of (livable) land, concluding that, while many provisions provide tools for the federal government to use, current constitutional jurisprudence ultimately may not be sufficient. Focusing on the Takings clause of the Constitution, Arthur Smith discusses the recent U.S. Supreme Court ruling in Sheetz v. County of El Dorado holding there is no general Takings clause exemption for state legislatively enacted impact fees to fund necessary road and access infrastructure associated with new development (including potential future infrastructure necessary to address climate resiliency), positing that the Sheetz decision hints at the Court’s heightened interest in landowner rights at the expense of local funding decisions.

The next set of articles have the common theme of how property law can help effectuate climate goals. Danielle DiMauro analyzes BLM initiatives focused on incentivizing wind and solar development on federal land. Jake Hirsch discusses key legal considerations to minimizing risk and developing solar energy projects on brownfield sites, including available financial incentives. Carbon capture and storage (CCS) implicates the legal question of “whose pore space is it?” and Vanessa A. Silke and Hannes D. Zetzsche provide an overview of the financial drivers, physical factors, and legal considerations for a CCS developer’s acquisition of pore space under privately owned land. Moving from below ground to above ground, Katherine Lee Goyette offers a view of the legal and technological issues associated with decarbonizing the aviation sector to promote climate goals.

A discussion of property and the environment necessarily raises conservation issues. Kianna Moore and Michael Linder delve into the use of conservation easements to preserve land for agricultural purposes, which promote both personal and societal goals associated with protecting agricultural land as a generational asset, maintaining rural communities, and protecting local food sources. In the arid West, water scarcity has put a spotlight on how we use water and whether its use meets our economic, cultural, and moral expectations. Gregor MacGregor discusses the solution of eliminating the irrigation of “nonfunctional turf,” which includes decorative turf in public right of ways, to promote regional conservation efforts and urban resiliency.

EPA’s recent April 2024 action setting Clean Water Act public drinking water maximum contaminant levels and goals for PFAS is the basis of Dr. Andrew N. Davis’s and Sarah A. Kettenmann’s timely article discussing the potential risks of PFAS in property transfers, including what risk-management strategies to use to address the evolving PFAS federal and state legal requirements. Charles Gibbons and Stephanie Biehl address the perennial question of how to value of property diminution that stems from environmental damages, discussing theories and considerations to prove or defend against such damage claims. In our final article, Shantal Pai summarizes the long history of varying approaches to tribal property rights that has influenced tribal land ownership, jurisdictional boundaries, and autonomy (or not) with respect to tribal environmental enforcement, policy, and challenges.

Since property is everywhere, here’s to you finding a comfortable place to kick up your feet so you can settle in and digest the articles contained in this issue.