Urban Forests as Weapons against Climate Change: Lessons from California's Global Warming Solutions Act

II.  The Gilded Age of Climate Commerce: California’s Global Warming Solutions Act

A.B. 32 allows polluters to satisfy greenhouse gas emission compliance requirements by offsetting emissions with projects that sequester atmospheric carbon.¹⁴ One of these programs provides offset credits for planting trees in urban forests.¹⁵ These offsets have been extremely controversial, and many scholars have pointed out potential challenges for successful implementation.¹⁶ Nonetheless, these offsets provide a unique opportunity to mitigate the effects of climate change while in- vesting in new ecological resources that allow urban communities to adapt to our changing planet.¹⁷

A.  California's Urban Forests Offset Protocol

In 2006, California adopted A.B. 32¹⁸ as a sweeping response to the effects of climate change.¹⁹ The Act represented the first set of comprehensive greenhouse gas regulations in this nation’s history.²⁰ The short-term goal of the Act is to reduce California’s greenhouse gas emissions to 1990 levels by the year 2020.²¹ These reductions equate to a thirty percent decrease in predicted future emissions totals for the year 2020, and a fifteen percent decrease from emissions totals in the year 2008.²² To achieve its emissions targets, the California Air Resources Board drafted a “scoping plan”²³ that outlined a range of programs to achieve “the maximum technologically feasible and cost-effective reductions.”²⁴

One of the groundbreaking features of the Act is the implementation of a cap and trade system to regulate greenhouse gas emissions.²⁵ The cap and trade system became operational in early 2012, and the first emissions credits were auctioned in November 2012.²⁶ This market-based system establishes a baseline distribution of emissions allowances according to historic emissions data.²⁷ California’s cap and trade system allows entities²⁸ to trade allowances and satisfy compliance requirements by earning “offset credits” through programs that prevent greenhouse gas emissions or remove greenhouse gases from the atmosphere.²⁹ Most credits were initially bought through an auction, but some credits were allocated through a system of reserve distributions.³⁰ California regulations state that offset credits cannot comprise more than eight percent of an emitting entity’s compliance portfolio.³¹ However, some observers note that offsets could ultimately comprise eighty-five percent of the state’s ongoing emissions reductions.³² Some scholars argue that California’s cap and trade program has become an “ideological target and rallying cry” and will serve as a model for future cap and trade systems around the world.³³

Two of the Air Resources Board’s four approved offset protocols encourage carbon sequestration by incentivizing reforestation: one protocol provides offset credits for rural forests,³⁴ and one protocol provides offset credits for urban forest projects.³⁵ The urban forest offset protocol applies to projects that are undertaken on land owned or controlled: (i)  in municipalities, including trees planted on private property; (ii) on educational campuses; or (iii) by utilities.³⁶ For municipalities, trees must be planted “[a]long streets, in parks, city golf courses, cemeteries, near city buildings, greenbelts, city parking lots, and other public open space, or on private property.”³⁷ For educational campuses, trees must be planted “[a]long streets, near classrooms, dorms, office buildings, near recreational fields, and other facilities, in parking lots, arboretums, and other open space on educational campuses.”³⁸ For utilities, trees must be planted “[i]n parks, streets, parking lots, private property, and open spaces by utilities.”³⁹ This protocol applies to tree sites that contain “one tree at a time,” but “tree[s] may be replaced over time and the site of the tree may [ultimately] be moved.”⁴⁰ Projects are eligible for the protocol if they produce a net tree gain for the project area,⁴¹ but all projects must be re-certified every six years.⁴²

When projects are planted in municipalities or on educational campuses, the projects must go beyond a “business-as-usual” threshold.⁴³ This means that the net tree gain of the project (over a five year average) must exceed the average annual difference between plantings and removals over the five-year period immediately preceding the introduction of the offset project.⁴⁴ However, when trees are planted by utilities for “energy conservation” or to “replac[e] trees removed during line clearance operations,” these projects need not exceed business as usual thresholds.⁴⁵ For all projects, offset totals are quantified as the difference between carbon that is sequestered through the addition of new trees and carbon emitted through the installation and management of those trees.⁴⁶ Projects must also submit a maintenance plan that specifies how the agency that planted the trees will provide ongoing maintenance and care of trees.⁴⁷

B.  Criticisms of California’s Cap and Trade Program

A.B. 32 has been a rallying cry for critics of market-based solutions to climate change.⁴⁸ Cap and trade programs have been criticized for decades,⁴⁹ but California’s program has drawn particularly virulent criticism from jurists, environmentalists, and philosophers. Many scholars have identified conflicts between cap and trade programs and environmental justice. On a fundamental level, some scholars believe that it is inherently unethical to commodify environmental goods and resources.⁵⁰ Similarly, these scholars note that the privatization of ecological resources is likely to place disproportionate burdens on disadvantaged communities.⁵¹ These are serious challenges that will continue to confront California’s lawmakers over the course of upcoming years and decades, but we must also remember that there is value in taking decisive action. Hesitation and inaction will certainly lead to disaster.⁵²

Another popular line of criticism is that A.B. 32’s cap and trade mechanisms will not actually lead to emissions reductions. Some scholars criticize the fact that A.B. 32’s cap and trade program will allow polluters to buy pollution, rather than reduce pollution.⁵³ Other scholars worry that polluters will take advantage of imbalances in the marketplace and suggest that a surplus of credits or allowances will produce "the appearance of compliance without any actual reductions."⁵⁴ Researchers also worry that inaccurate monitoring data could cripple California’s cap and trade system.⁵⁵ One scholar suggested that California’s climate change policies are ineffective because they are too vulnerable to potential legal challenges and that effective implementation is likely to be burdened with future litigation.⁵⁶ Time will tell if the A.B. 32 will actually have any measurable effect at mitigat climate change, but these critics are certainly correct that the cap and trade system will only succeed with strong oversight from regulators to ensure compliance.

Although many scholars have identified general criticisms of California’s cap and trade system, some scholars have specifically criticized the A.B. 32’s system of offset protocols. Ross Astoria, for example, argues that the urban forest offset protocol will not make any real, measurable effect on reducing carbon emissions.⁵⁷ Additionally, Astoria suggests that the inclusion of offset credits for utilities is more likely an “ad hoc throw-away” than a real attempt to identify sequestration opportunities.⁵⁸ There is also a danger that offsets will burden disadvantaged communities: Daniel Farber argues that the offset protocols will lead to smaller reductions for in-system co-pollutants, and this will have particularly adverse effects for low-income residents in high-pollution areas.⁵⁹ Although the development of urban forests may not make a sizeable contribution to global climate change mitigation efforts, it is important for policy makers to recognize that urban forests provide a range of environmental, social, and aesthetic benefits to urban communities.⁶⁰ If implemented correctly, urban forest development plans could actually have tremendous benefits for historically disadvantaged urban communities.⁶¹ Unfortunately, many of the aforementioned critics overlook the fact that the development of vibrant, urban ecosystems through the urban forest offset protocol may actually provide more good than harm for urban communities.

In addition to these scholarly critiques, the Act’s offset protocols have also faced challenges in court. In 2012, a group of environmentalists filed suit in California Superior Court to challenge the Air Resources Board’s methodology for determining whether offsets resulted in “additional” emissions reductions.⁶² Although project-by-project offsets are usually more precise in measuring total emissions reductions, Judge Ernest H. Goldsmith observed that California’s offset protocols were actually less precise than categorical carbon offsets.⁶³ Despite these criticisms, the court ultimately rejected these challenges and concluded that it was not the job of the court to decide if one methodology was better than another “when decisions are made based on extensive research, stakeholder input, public input, and fact-based analysis.”⁶⁴ With regard to the urban forest offset protocol, Judge Goldsmith ruled that these programs did in fact lead to additional reductions because tree planting was not a common practice in urban areas and because utilities rarely plant trees.⁶⁵ The plaintiffs have appealed Judge Goldsmith’s offsets ruling, but the ruling was upheld in the California Court of Appeal.⁶⁶

III.  An Overview of Urban Forest Management Practices

When implementing urban forest offset protocol projects, developers must have a comprehensive understanding of property rights that attach to trees in California. Additionally, developers must understand the ways in which municipalities maintain and regulate urban forests. Although some countries differentiate between tree ownership and land ownership,⁶⁷ California law specifies that landowners also own any trees that grow from their land.⁶⁸ Additionally, California’s urban forests are regulated through various local ordinances, some of which require participation by private landowners.

A.  How Do You Determine Tree Ownership?

In California, tree ownership is determined by the location of a tree’s trunk.⁶⁹ The owner of the land where a tree’s trunk attaches to the ground owns that tree.⁷⁰ If a tree trunk grows across a boundary line, the neighboring landowners own the entire tree as tenants in common.⁷¹ Ownership does not change when branches or roots grow across a boundary line.⁷² To the extent that tree branches and roots encroach above or below another person’s property, the branches and roots belong to the person upon whose land they encroach.⁷³ Property owners may incur civil or even criminal liability for cutting off branches that encroach above or below their property.⁷⁴ Instead, courts recommend that property owners pursue injunctive relief to resolve encroachment disputes.⁷⁵

In addition to trees growing on their land, property owners also maintain a “qualified” or “limited” interest in trees that grow in front of privately owned land.⁷⁶ However, this property right is subordinate to the rights of municipalities to manage and maintain trees along public rights of way.⁷⁷ Municipalities may “trim or remove” trees along public rights of way “whenever the public interest requires such action.”⁷⁸ Additionally, this property right is subordinate to easements along the public right of way, such as sidewalks or driveways.⁷⁹ If trees block travel along “sidewalks, parkings, or streets,” municipalities can trim or remove the offending trees and “make the cost of removal a lien upon the abutting property.”⁸⁰ Likewise, if trees are “dangerous or injurious to neighboring property,” municipal officials may order the removal of the offending trees.⁸¹

Property interests in trees are also limited when trees interfere with utility easements.⁸² California courts have recognized that utility companies owe a duty of “efficient performance” to the public.⁸³ To fulfill this duty, utility companies maintain a right to cut off branches of privately-owned trees when branches or roots interfere with the “proper and efficient use” of utility wires.⁸⁴ These overlapping property rights could potentially lead to conflict when competing parties disagree about how trees should be used, managed, or maintained.⁸⁵ Consequently, policy makers must balance a complex, interwoven patchwork of property rights when formulating management plans for urban forests.

As our cities get denser and our trees grow older and taller, property owners should be mindful of these rights and duties when managing trees. Firms that plant trees as part of urban forest offset protocol projects should be mindful of the fact that they may not own trees after they are placed in the ground, but they will still be responsible for the ongoing care and management of those trees.⁸⁶ Consequently, firms that implement projects under the urban forest offset protocol must cooperate with private landowners to ensure the ongoing health of our urban forests.

B.  Who Manages The Urban Forest?

Municipal planners have always considered the role that trees play in creating an urban aesthetic.⁸⁷ In the late nineteenth and early twentieth centuries, city planners like Daniel Burnham embraced the use of trees as “decorative markers.”⁸⁸ Some scholars suggest that the popularity of landscape architecture in the nineteenth century derived from a de- sire to “dominate and impose order over nature.”⁸⁹ However, by the middle of the twentieth century, scholars and planners began to recognize that trees also provide important social, ecological, and economic benefits to urban communities.⁹⁰ Cities across the United States are now using trees to limit stormwater runoff, prevent heat loss in the winter, facilitate cooling in the summer, and preserve biodiversity.⁹¹ Additionally, scholars now recognize that successful urban forest management strategies can have a significant impact on our society’s ability to mitigate and adapt to the effects of climate change.⁹² Many of these trends are reflected in urban forest management plans in California’s cities, counties, and towns.

In California, urban forests are managed almost exclusively by local ordinances. Many municipalities in California have adopted ordinances that consider a wide range of uses and functions of trees in urban ecosystems.⁹³ Some cities regulate the ways in which trees affect views and aesthetics.⁹⁴ The city of Berkeley, for example, protects “access to light and views from the surrounding locale.”⁹⁵ Some cities, like San Francisco, have regulations that protect trees of historic significance.⁹⁶ Other cities utilize trees to conserve energy by creating shade.⁹⁷ Los Angeles, for example, requires that landscape plans must contain “a proposal for shading of walls of structures.”⁹⁸

Different municipalities require different degrees of community participation in the management of urban forests. Some municipalities specifically require property owners to care for trees planted in front of their property, while other municipalities assume primary responsibility for maintaining trees along public rights of way. For example, Los Angeles’ Department of Urban Forestry is responsible for maintaining trees growing along public streets.⁹⁹ San Francisco, on the other hand, is in the process of shifting responsibility for tree management and maintenance to private property owners.¹⁰⁰ However, if private citizens take the initiative to care for and maintain trees that are usually cared for by a local municipality, those citizens may incur liability if their mismanagement of those trees causes an injury to the public.¹⁰¹ 

If firms plant trees on privately owned land, the trees will belong to the individuals upon whose land the trees are located.¹⁰² However, the terms of the urban forest protocol specify that responsibility for management and maintenance of the trees will remain with the party that planted the tree.¹⁰³ The bifurcation of maintenance responsibilities from ownership will likely lead to conflict if the private property owner believes that trees planted for offset credits are not being maintained properly. This is especially relevant in situations where trees are in poor health and could potentially cause injuries to others. Furthermore, this could potentially lead to a “tragedy of the urban commons” — the parties responsible for maintenance will have little motivation to care for trees that they see only infrequently, while private landowners will assume that firms will do their part to keep the trees well maintained.¹⁰⁴ Private landowners may also refrain from providing care to trees out of fear that they will incur liability for mismanaging or damaging trees planted by firms.

To resolve some of these potential conflicts, local land use authorities will need to incorporate urban forestation plans into existing plans for streetscaping, zoning, and other forms of land management.¹⁰⁵ Private firms should also consult with city planners to make sure that trees planted through urban forest protocol projects contribute to the city’s ecological, social, and aesthetic needs. Furthermore, all parties should listen to voices within urban communities to consider the perspectives of those who will ultimately benefit from new trees.

IV.  Potential Conflicts for the Management of Urban Forests

Trees can bring out the best in people, and trees can bring out the worst in people.¹⁰⁶ We all form deep, emotional bonds with the natural world around us, and many treat trees with love, respect, and admiration.¹⁰⁷ However, at least four people have died in tree related property disputes in the United States over the last three years.¹⁰⁸ Even if tree disputes do not end in bloodshed, they can be messy, complicated, and expensive.¹⁰⁹

Sequestration programs offer unique opportunities, but they also open doors to a wide range of potential conflicts. To some extent, California’s urban forest protocol upsets traditional property rights for trees. Firms will inevitably plant trees on land they do not own, but these firms will still have a duty to maintain and care for those trees.¹¹⁰ When landowners and firms do not see eye-to-eye about how to manage and maintain trees, conflict will soon follow. Additionally, local urban forest management plans may conflict with national or international climate change initiatives.¹¹¹

A.  Property Rights Conflicts: The Urban Forest Protocol as a Step Toward the Privatization of Urban Forests

With the introduction of new trees in our urban communities, private landowners, firms, municipalities, and utilities will all likely argue over who owns these new trees and who has the obligation of maintaining them.¹¹² Everyone will want to enjoy the benefits of these trees, but few will want to pay for the cost of maintaining them. Private citizens will retain full property rights over trees planted on private land, and limited property rights over trees planted in front of private property on streets, sidewalks, and other rights of way.¹¹³ Sooner or later, the interests of private citizens will come in conflict with the interests of municipalities and utilities.

Some scholars have suggested that firms should be able to retain a property interest in carbon sequestered in trees.¹¹⁴ Carbon is itself a commodity, and these scholars argue that firms should be able to retain mineral rights to stored carbon.¹¹⁵ However, it is unlikely that this framework will come to fruition in California. Planting trees is very different from storing oil in tanks or collecting coal in piles. Trees provide a range of ancillary benefits to local communities, and all members of that community share in those benefits. Moreover, trees are not fungible assets — every tree is unique, and firms should not retain property rights in the specific carbon contained in newly planted trees.

Although California law does not provide a right to views, light, or air, some local ordinances restrict trees that obstruct views or trees that block light and air.¹¹⁶ Consequently, firms that introduce urban forest projects in these jurisdictions should be mindful of potential liability for growing trees that that are too big or too tall. Firms should also be aware that citizens have a right to remove trees that interfere with solar energy collectors, and project managers may be forced to remove trees that interfere with these solar collectors.¹¹⁷ This source of conflict is only likely to intensify as Californians continue to invest in renewable energy production sources, like solar panels.

When implementing urban forest projects, it is essential for private landowners, firms, municipalities, and utility companies to work together to avoid potential property disputes. Even if private landowners do not completely own or control the land on public rights of way in front of their homes, municipal leaders and urban forest project managers must be mindful of potentially adverse psychological consequences when trees are unsightly or mismanaged.¹¹⁸ Urban forest project managers should treat cities and urban spaces as a shared home, of sorts, and care for all trees with the same respect they would give if the trees were in their own front yard.

B.  Ecological Management Conflicts

As more and more firms take advantage of A.B. 32’s urban forest offset protocol, a larger number of trees in California’s urban forests will be managed by private entities. On one hand, this will solve the problems of cities like San Francisco that wish to divest from urban forest management. On the other hand, this is a step toward the privatization of a public good. All citizens benefit from urban forests, but private management plans will not be under the control of local land use authorities, and firms may place their own self-interest above the needs of local communities.¹¹⁹ This can have especially damaging consequences if firms overlook the needs of traditionally underserved com- munities that do not have a voice in society.¹²⁰

There will also likely be conflicts with regard to how public and private managers of urban forests should assign access to the benefits of key ecological resources. Trees can help minimize climate fluctuations and buffer against natural disasters.¹²¹ One way trees can regulate temperature is by helping cities fight the “heat island effect” — studies show that surfaces that are covered by shade are, on average, twenty to forty five degrees cooler than areas that are not covered by shade.¹²² Additionally, the process of evapotranspiration can reduce peak summer temperatures in forested areas by two to nine degrees.¹²³ Urban forests also help urban areas prevent erosion and limit water runoff. For example, one Seattle neighborhood was able to reduce water runoff by ninety-eight percent through the extensive use of green infrastructure.¹²⁴ In this sense, the true value of urban forests is not through carbon sequestration, but rather by helping urban communities develop urban ecosystems that are more resilient to the adverse effects of climate change.

To achieve a just and equitable distribution of these environmental resources, policy makers should consider the perspective of all citizens and place special emphasis on the needs of individuals who are traditionally underserved or underrepresented. This will require a coordinated assessment of the needs of individuals living in urban ecosystems, but many environmental ethicists agree that local governments should maximize the “natural capital” of urban trees according to the specific needs of individual communities.¹²⁵ Keith Hirokawa, for example, argues that this should be achieved through an “ecosystem services analysis,” where local governments should “value and prioritize” the ecological, economic, and social benefits of urban trees.¹²⁶ Because multiple communities will place different relative values on services provided by urban forests, an ecosystem services analysis will allow individual communities to achieve maximum benefits from the manner in which urban forests are managed.¹²⁷ Within this framework, urban forest managers can focus on the needs of traditionally underserved neighborhoods that historically have not been included in urban forest management plans.¹²⁸ This integrated approach to managing urban forests also allows project administrators to focus on those who suffer the most from the effects of climate change.

It is also important for resource managers to constantly reassess management plans according to the latest scientific data. To achieve these goals, some scholars have suggested that local resource administrators should use adaptive co-management strategies when managing urban ecological resources.¹²⁹ These strategies propose that the best way to manage ecological resources is through an “iterative decision-making process of repeated learning and adaption.”¹³⁰ Adaptive co-management assumes that the world is always in flux, and decision makers must constantly reassess policies according to the latest and best scientific information available.¹³¹ By incorporating a process of rapid reassessment, policy makers can limit anthropogenic stresses on the environment.¹³² Within this process of assessment and reassessment, local communities and local decision-makers assume primary responsibility for managing local ecosystems.¹³³ This local participation allows for a greater degree of procedural justice because it is more responsive to a diverse range of affected interests.¹³⁴ If urban forest managers adopt these principles, then adaptive co-management strategies can be an essential tool for urban forest project managers to cope with rapid, unpredictable changes to our planet’s climate.

Urban forests have the potential to help cities adapt to some of the worst effects of climate change. However, it is essential for urban forest project managers to achieve a just and equitable distribution of resources that considers the needs and perspectives of all members of urban communities. Urban forest project managers also must change and adapt according to the latest and best scientific knowledge. By implementing adaptive co-management strategies, urban forest project managers can improve accountability and secure a more resilient urban environment for future generations.¹³⁵

C.  Climate Localism v. Climate Globalism

Another potential area of conflict for California’s urban forest offset protocol is with competing interests at the local, state, federal, and global levels. Overlapping regulatory schemes may have different goals and objectives for how to utilize or develop urban environmental resources. If the federal government adopts comprehensive climate change legislation, then California’s offsets will be subsumed or preempted by the federal scheme.¹³⁶ International climate change legislation may also have a similar effect and render some components of California’s cap and trade system obsolete.¹³⁷

There is also the possibility for intra-state conflicts when developing urban forest projects. Firms that take advantage of the offset protocol may be more attracted to developing forests in more temperate cities to the north that offer the best chance of survival for larger trees that sequester more carbon.¹³⁸ However, cities in arid climates may actually benefit the most from urban forestation projects.¹³⁹ On one hand, focusing forestation projects in temperate cities will take more carbon out of the atmosphere relative to the total costs of reforestation projects. On the other hand, when firms play favorites with cities in Northern California, this will leave cities in the south more vulnerable to the worst effects of climate change because they will not be protected by the benefits of well-developed urban ecosystems.

California also risks losing public support for its climate change legislation if the state continues to bear the burden of paying for pollution from other states and other nations.¹⁴⁰ Climate change is a problem that affects the entire planet; when local actors take unilateral action to combat climate change, the local actors bear all the costs while enjoying few benefits.¹⁴¹ However, there is still an important role for local leadership in the fight against climate change. California’s policies can serve as an experiment for crafting future climate change legislation,¹⁴² and A.B. 32 will hopefully encourage other states to join the fight.¹⁴³ Additionally, when investing in urban ecosystems, local community leaders will have the best understanding of how to distribute ecological resources in a way that maximizes the welfare of the community.¹⁴⁴

Some scholars criticize the focus on local opinion in adaptive co- management systems because it discounts and dilutes scientific opinion in the decision-making processy.¹⁴⁵ There is certainly merit to the argument that local leaders should listen to the best and brightest scientists, even if those scientists do not necessarily understand the unique needs and circumstances of every local community in the country.¹⁴⁶ In fact, local leaders have no reason to act contrary to scientific advice when doing so would be contrary to the locality’s best interests. However, it is essential to include the voice of local leadership when formulating climate change policies so that local leaders can represent traditionally disadvantaged and underserved groups. If legislators want urban forest projects to benefit all members of urban communities, then legislators at the state and national level must listen to the perspective of local leadership.

All of these considerations show that there is still an important role for local action and local leadership in the fight against climate change. Local leaders know how to best distribute the benefits of ecological resources to urban communities, and local leaders can help design urban forest projects that best serve the needs of underserved urban areas. Urban forest project managers should also make efforts to introduce new trees in California’s arid regions, because these areas will be most vulnerable to climate change and could benefit the most from urban forests. Finally, urban forest project managers should be mindful of the possibility that new federal or international legislation could change California’s offset programs.

V.  Policy Recommendations: How A.B. 32 can Help Fight Climate Change While Building Stronger Local Communities

An investment in the reforestation of urban ecosystems through the urban forest protocol provides the unique opportunity to fight climate change while building communities that are more resilient to the effects of climate change.¹⁴⁷ Urban forest managers must introduce trees that have (i) the best chance for survival in an uncertain future, and (ii) provide the greatest number of benefits and resources to local communities. However, the distribution of these resources presents key problems of social justice and environmental justice. The best way to maximize the benefits of urban ecological resources is through a coordinated distribution of these resources that accounts for the needs of underserved groups and protects the traditional private property rights of urban residents.¹⁴⁸ This coordinated approach will allow project managers and municipal leaders to maximize the ecological, social, and aesthetic benefits for urban communities.

A.  Using Urban Forests to Maximize Ecological Benefits

Many of the effects of climate change are now inevitable and irreversible.¹⁴⁹ To adapt, firms that plant new trees through the urban forest offset protocol should introduce trees that (i) have the best chance for survival in our changing environment, and (ii) offer the most ecological, social, and environmental benefits to local communities.¹⁵⁰ Developers may actually do more harm than good by wasting time, energy, and resources if they plant trees that are unlikely to survive or trees that offer few ancillary benefits to urban ecosystems.

Once upon a time, ecologists advocated for the development of sustainable urban ecosystems, arguing that our society has a duty, to the extent possible, to preserve nature in a state untouched by human hands. This theory is grounded in the concept that nature has intrinsic value that should be prioritized above anthropocentric utilitarian considerations.¹⁵¹ Although the origins of this theory developed centuries ago, the great naturalist John Muir popularized the modern iteration of this theory in the late nineteenth century.¹⁵² By the middle of the twentieth century, urban environmental ethicists Aldo Leopold and Jane Jacobs popularized the notion that humans should develop sustainable urban ecosystems where ecological resources are preserved for future use and enjoyment.¹⁵³ Philosophers like John Rawls and Derek Parfit also argued that society has a duty to preserve the natural world, as it exists today, for future generations.¹⁵⁴ In the United States, most of the nation’s major environmental laws embody the values of sustainability through attempts to preserve a state of nature as it existed in the late twentieth century.¹⁵⁵ At a local level, city planners attempted to find sustainable alternatives to urban growth.¹⁵⁶

Unfortunately, sustainable urban development is no longer feasible. The effects of climate change have spiraled out of control, and resource managers cannot afford to invest in ecological resources that will likely die as a result of changes to our planet’s climate.¹⁵⁷ Instead, resource managers must develop resilient urban ecosystems that have the best chance of survival and will provide the greatest number of ecological resources in our changing environment.¹⁵⁸ California’s urban forest offset protocol provides urban planners the unique opportunity to invest in ecological resources that can help urban communities better cope with our radically uncertain future.¹⁵⁹ Firms that plant new trees should introduce species that have the best chance of developing stabilizing feedbacks, where urban ecosystems can survive without an investment of additional resources.¹⁶⁰ It is essential for urban forests to be as flexible as possible, and to have the “adaptive capacity” to survive even when faced with changing circumstances.¹⁶¹

The principles of resilient development conflict with a recent trend in some California cities to reintroduce native plants and remove invasive, non-native species.¹⁶² In San Francisco, for example, the University of California planned to remove more than half of the 45,000 eucalyptus trees in Sutro Forest and replace them with native plants.¹⁶³ Urban planners must accept the fact that native plants will not actually be “native” if they cannot survive in our changing climate.¹⁶⁴ Instead, urban forest protocol project managers should find plants that have the best chance of survival. Ironically, eucalyptus trees may actually be a very resilient species that sequesters a large quantity of carbon.¹⁶⁵

It is also essential for developers to introduce trees that use as little water as possible. Water is already an excruciatingly scarce resource in California, and water reserves are likely to shrink in future decades.¹⁶⁶ Urban ecosystems cannot continue to support trees that use large quantities of water.¹⁶⁷ Fortunately, trees can help maximize groundwater recharge.¹⁶⁸ Forested areas can help absorb rain, resupply aquifers, clean stormwater, and redirect runoff into streams and rivers.¹⁶⁹ One estimate states that eighty percent of our nation’s fresh drinking water originates in land in United States National Forests.¹⁷⁰ Some cities have even formed “tree councils” to conduct outreach programs to educate residents about responsible tree stewardship and to facilitate reforestation projects that conserve water.¹⁷¹ Therefore, it is essential for urban forest project managers and municipal water administrators to work together to develop urban forests that preserve water security for future generations of Californians.

Developers should now make resilience the mantra of progress. We have come to the point in history when we must begin conducting triage to determine which species are likely to thrive in tomorrow’s uncertain future, and urban forest managers should invest in species that have the best chance of survival as our planet gets warmer and warmer. Developers should not look at this as a challenge, but rather, as an opportunity: a chance to build cities that have a better chance of surviving the challenges of climate change in future generations while providing key benefits and resources for urban communities.

B.  Using Urban Forests to Maximize Social Benefits

In addition to many key ecological benefits, urban forests also provide key social benefits.¹⁷² Urban forests help foster a sense of happiness, improve psychological satisfaction, and help urban residents stay healthy.¹⁷³ Additionally, urban forests help foster civic cohesion, a sense pride for local communities, and a general appreciation for nature.¹⁷⁴ California’s urban forest projects also have the unique opportunity to provide goods and services to traditionally underserved communities. In order to achieve these social benefits, proper implementation of the urban forest protocol will require significant cooperation between the State Air Resources Control Board and local land use authorities. However, urban forest project managers and local leaders should also defer to traditional property rights of private landowners so that these landowners can manage trees in a manner that best suits their own individual needs.

Over sixty years ago, Justice William O. Douglas¹⁷⁵ articulated the relationship between the space in which a person lives and their psychological well-being:

Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.¹⁷⁶

Well-developed urban forests can help improve aesthetic qualities of neighborhoods, and they can help urban residents feel a greater sense of psychological well-being through a greater appreciation for the space in which they live. Moreover, by encouraging a greater awareness and appreciation for nature in urban communities, this may actually inspire urban residents to take a more proactive role in protecting our planet from the dangers of climate change.

Urban forests foster an ethos of living at peace with nature; by coming into contact with trees every time you step outside your home or office, you are reminded that our natural world is omnipresent — even in the heart of the urban jungle.¹⁷⁷ In fact, research shows that humans are more likely to develop positive emotional and psychological characteristics when we have the opportunity to interact with the natural world around us.¹⁷⁸ A “biologically impoverished planet will not only reduce humanity’s economic and health-care options, it will diminish our emotional lives as well.”¹⁷⁹ A world without trees is cold and indifferent — individuals who live in concrete communities will inevitably resent their harsh, callous surroundings.¹⁸⁰

However, there are other reasons to believe an investment in urban forests will improve the psychological satisfaction of urban residents. Urban residents will likely feel a greater sense of psychological satisfaction if they are more confident in their community’s ability to adapt to climate change.¹⁸¹ On a philosophical level, when we are removed from nature, we are confronted with existential questions about our role in the world — we feel isolated, secluded, and imprisoned.¹⁸² On a social level, improving inequitable distributions of ecological resources will help improve psychological well-being among members of disadvantaged communities. This will help all citizens in urban communities by providing assurances that our political systems are just and fair.

An investment in urban forests will also improve the physical health of urban residents. By regulating temperatures and removing pollutants, urban forests will have wide-ranging benefits for all citizens.¹⁸³ This will almost certainly save lives during extreme heat waves or blizzards.¹⁸⁴ These physical benefits will also, in turn, help citizens feel a greater sense of psychological satisfaction.¹⁸⁵ To foster these positive emotional and physical benefits in urban communities, policy makers should continue to incentivize the development of urban forests, and policy makers should ensure that these benefits are provided to all members of urban communities.

In this sense, urban forest projects can make significant steps toward remedying social injustice by creating a more equitable distribution of environmental resources.¹⁸⁶ Many poor, urban communities are desperately underserved and have few trees or other ecological resources.¹⁸⁷ In California, the majority of stationary sources of air pollution are disproportionately located in disadvantaged communities.¹⁸⁸ Studies show that minority communities are exposed to two to three times more industrial pollution than white communities.¹⁸⁹ Municipalities and private firms can help remedy these inequalities by making efforts to plant trees in these underserved communities.

There is certainly a danger that private corporations will play favorites and plant trees in neighborhoods that benefit affluent members of the community. To ensure a just and equitable distribution of trees in urban ecosystems, municipalities should provide incentives to prioritize planting urban forests in underserved communities.¹⁹⁰ It is essential for firms, cities, and private landowners to work together to make sure that all members of urban communities can enjoy the benefits of urban forest projects.

However, it is also important for urban forest managers and municipal administrators to respect traditional property rights for tree ownership. Private landowners should have the right to manage trees in the way that best suits the ecological, aesthetic, and social needs of their property. However, when trees grow on public land, municipalities should coordinate the management and care of those trees. Through the economy of scale, municipalities will be able to spend more resources on urban forest management, thereby improving the overall health of trees. Municipalities can better allocate the benefits of urban ecological resources to those who would benefit most from those resources.¹⁹¹ In this sense, municipalities can maximize the “natural capital” of the urban forests.¹⁹² Nevertheless, for trees located on privately owned land, the private landowners should be responsible for the management of those trees.

C.  Using Urban Forests to Maximize Aesthetic Benefits

In addition to creating healthy, resilient urban ecosystems, urban forest managers should develop urban forest projects that contribute to a positive urban aesthetic. Beauty is, of course, in the eye of the beholder,¹⁹³ but vibrant and verdant urban forests are a critical component of the urban aesthetic fabric.¹⁹⁴ Some scholars note that nature derives its powerful aesthetic force from its metaphoric quality: it is a symbol of freedom, innocence, and purity.¹⁹⁵ When we confront a world of concrete and plastic, we must also confront the hubris of our society — we are reminded of the fact that we are responsible for the degradation of our planet.¹⁹⁶ In this sense, urban forests can help achieve environmental justice, social justice, and aesthetic justice.

Planting trees in urban areas through urban forest projects adds many aesthetic benefits to local communities. Forests can provide a “unifying aesthetic” that suggests neighbors have shared values and shared experiences.¹⁹⁷ A positive urban aesthetic will, in turn, encourage citizens to care more about their local community.¹⁹⁸ A well maintained urban aesthetic can help improve property values,¹⁹⁹ and positive aesthetic features can help establish a sense of history and tradition for local neighborhoods.²⁰⁰ Consequently, California’s urban forests offset protocol can help improve aesthetic features of our urban ecosystems by trans- forming our concrete streets into green, vibrant, community-orientated spaces.

VI.  Conclusion

Urban forests will play an essential role in the ability of urban communities to adapt to the effects of climate change. A.B. 32’s urban forest offset protocol provides planners the unique opportunity to revitalize urban communities while making our urban ecosystems more resilient. However, it is essential for urban forest project managers to design ecosystems that are likely to survive in our uncertain future. Additionally, planners should design forests that meet the needs of all members of society, including those who have been traditionally disadvantaged by inequitable distributions of ecological resources.

1. Ogden Nash, Song of the Open Road, in THE FACE IS FAMILIAR, (Little, Brown, & Co., 21 1940).
2. Growth in Urban Population Outpaces Rest of Nation, Census Bureau Reports, U.S. Census Bureau (Mar. 26, 2012), available at https://www.census.gov/newsroom/releases/archives/2010_census/cb12-50.html (“Of the 50 states, California [is] the most urban, with nearly 95 percent of its population residing within urban areas”).
3. For an overview of the challenges of climate change adaption in urban areas, see Alice Kaswan, Climate Change, Consumption, and Cities, 36 FORDHAM URB. L.J. 253 (2009). For a discussion of the roles that cities can play when fighting climate change, see Elise Stull, et al., Enhancing Urban Albedo to Fight Climate Change and Save Energy, 11 SUSTAINABLE DEV. L. & POL’Y 5 (2010). See Heike Schroeder & Harriet Bulkeley, Global Cities and the Governance of Climate Change: What is the Role of Law in Cities?, 36 FORDHAM URB. L.J. 313 (2009) (comparing climate change policies in London and Los Angeles); Hari M. Osofsky & Janet Koven Levit, The Scale of Networks?: Local Climate Change Coalitions, 8 CHI. J. INT’L L. 409 (2008) (discussing the role of cities as leaders in the fight against climate change).
4. See John F. Dwyer, et al., Connecting People with Ecosystems in the 21st Century: An Assessment of Our Nation’s Urban Forests, UNITED STATES DEPT. OF Agriculture, Forest Service, 65, 94 (2000), available at http://www.fs.fed.us/pnw/pubs/gtr490/pnw_gtr490.pdf.
5. Keith H. Hirokawa, Sustainability and the Urban Forest: An Ecosystem Services Perspective, 51 NAT. RESOURCES J. 233, 234 (2011).
6. Lauren Bernadett, Agricultural Soil Carbon Sequestration Offset Programs: Strengths, Difficulties, and Suggestions for their Potential Use In A.B. 32’s Cap and Trade Program, 31 UCLA J. ENVTL. L. & POL’Y 198, 201 (2013).
7. Alan Ramo, The California Offset Game: Who Wins and Who Loses?, 20 HASTINGS W.-N.W.J. ENVTL. L. POL’Y 109, 130 (2014).
8. John R. Nolon, Managing Climate Change Through Biological Sequestration: Open Space Law Redux, 31 STAN. ENVTL. L.J. 195, 233-34 (2012) (citing Hugh T. Spencer, Climate Change Mitigation Strategies for Kentucky: Policy Options for Controlling Greenhouse Gas Emissions Through the Year 2020 AD, 111 (1998), available at http://epa.gov/statelocalclimate/documents/pdf/ky_2_fin.pdf). These figures may not accurately reflect the total emissions reduction potential for urban forests; urban forests help cities stay cool in the summer and warm in the winter, and these totals do not necessarily account for energy savings through reduced heating and cooling costs.
9. See Hirokawa, supra note 5, at 236-39.
10. Nolon, supra note 8, at 233.
11. See discussion, infra part V.A.
12. Hirokawa, supra note 5, at 234.
13. See discussion, infra part V.A.
14. CAL. CODE REGS. tit. 17, §§ 95821(b), 95970 et seq.
15. Air Res. Bd., CAL. ENVTL. PROT. AGENCY, Compliance Offset Protocol: Urban Forest Projects § 2.1 (2011), available at http://www.arb.ca.gov/regact/2010/capandtrade10/copurbanforestfin.pdf.
16. See, e.g., Ramo, supra note 7, at 151-52.
17. See discussion, infra at V.A.
18. CAL. HEALTH & SAFETY CODE § 38500, et seq.
19. Mary D. Nichols, Chairman of the California Air Resources Board, describes A.B. 32 as a “national and international model” for responding to climate change. Mary D. Nichols, California’s Climate Change Program: Lessons for the Nation, 27 UCLA J. ENVTL. L. & POL’Y 185, 189 (2009).
20. Henry Stern, A Necessary Collision: Climate Change, Land Use, and the Limits of A.B. 32, 35 ECOLOGY L.Q. 611, 611 (2008).
21. Ramo, supra note 7, at 110.
22. Id. at 111.
23. Air Res. Bd., CAL. ENVTL. PROT. AGENCY, Climate Change Scoping Plan: A Framework for Change (2008), available at http://www.arb.ca.gov/cc/scopingplan/document/adopted_scoping_plan.pdf.
24. CAL. HEALTH & SAFETY CODE § 38561. The Board was also required to choose alternatives that, among other considerations, “do not disproportionately impact low-income communities” and “minimize leakage.” § 38562(b).
25. Ramo, supra note 7, at 110-15 (discussing the unprecedented nature of California’s cap and trade program); see also Ross Astoria, Climate Hawks and California’s Carbon Offsets, 28 J. LAND USE & ENVTL. L. 227, 227-29 (2013) (discussing challenges of implementing carbon offsets). Although the Air Resources Board describes its program as a “cap-and-trade” system, some scholars note that the incorporation of offsets in the system technically makes the program a “hybrid” cap and trade system. See Ramo, supra note 7, at 110.
26. Astoria, supra note 25, at 227. Although trading began in 2012, compliance obligations began on January 1, 2013. See Cal. Air Res. Bd., California Cap-and-Trade Program Implementation Frequently Asked Questions (June 25, 2012), available at http://www.arb.ca.gov/cc/capandtrade/implementation/faq.pdf.
27. Astoria, supra note 25, at 240-41.
28. Entities that buy and sell credits are also known as “firms.”
29. CAL. CODE REGS. tit. 17, §§ 95821(b), 95970 et seq.
30. Astoria, supra note 26, at 241. Astoria notes that this initial auction created a “price signal” for the negative externality of greenhouse gas emissions and developed an income stream to fund various government programs. Id.
31. CAL. CODE REGS. tit. 17, § 95854 (2015).
32. Anne C. Mulkern, Offsets Could Make Up 85% of Calif.’s Cap-and-Trade Program, N.Y. TIMES, Aug. 8, 2011, available at http://www.nytimes.com/gwire/2011/08/08/08greenwire-offsets-could-make-up-85-of-califs-cap-and-tra-29081.html? pagewanted=all. Rajinder Sahota, Manager for Climate Change Operations at the California Air Resources Board, states in this article that “the scenario under which that 85 percent would be accurate is unlikely to occur in California.” Id. Alan Ramo claims that only ten percent of all emissions reductions will come through the cap and trade program. Ramo, supra note 7, at 113.
33. See Ramo, supra note 7, at 114.
34. Cal. Air Res. Bd., Compliance Offset Protocol: U.S. Forest Projects § 1 (2011), http://www.arb.ca.gov/regact/2010/capandtrade10/copusforest.pdf.
35. CAL. CODE REGS. tit. 17, § 95970 (2015) ; see generally Air Res. Bd., Cal. Envtl. Prot. Agency, Compliance Offset Protocol: Urban Forest Projects § 2.1 (2011), http://www.arb.ca.gov/regact/2010/capandtrade10/copurbanforestfin.pdf (explaining the procedure and method for carrying out this offset protocol).
36. Air Res. Bd., CAL. ENVTL. PROT. AGENCY, Compliance Offset Protocol: Urban Forest Projects § 2.1.
37. Id. at § 4.
38. Id.
39. Id.
40. Id. at § 2.1.
41. Id. at § 3.4.1. Ross Astoria notes that this protocol “anticipates the sort of tree-by-tree planning and maintenance done along sidewalks and in parks.” Astoria, supra note 25, at 250-51. The offset protocol defines offset projects as “a specific number of project tree sites, determined a priori, that will be planted and maintained within one of the above types of entities over the offset project life.” Air Res. Bd., Cal. Envtl. Prot. Agency, Compliance Offset Protocol: Urban Forest Projects § 2.1. If more trees are planted than are defined in the original offset project, this will constitute a “second, distinct urban tree project.” Id.
42. Air Res. Bd., Cal. Envtl. Prot. Agency, Compliance Offset Protocol: Urban Forest Projects at § 1.
43. Id. at § 3.4.1.
44. Id.
45. Id. (“[T]hese types of projects are not common practice and not required by regulation. . . .”).
46. Id. at § 5.
47. Id. at § 7.1.
48. See Alice Kaswan, Climate Change and Environmental Justice: Lessons from the California Lawsuits, 5 SAN DIEGO J. CLIMATE & ENERGY L. 1, 9-10 (2014).
49. See, e.g., Robert W. Hahn, Regulatory Reform at EPA: Separating Fact from Illusion, 4 YALE J. ON REG. 173, 180 (1986) (“Even for those who do not view this moral position as absolute, there is an important symbolic issue at stake: Allowing firms to trade emission rights sends a message that decisions about tradeoffs between economics and environmental quality can be left to the polluters.”); Stephen M. Johnson, Economics v. Equity: Do Market-Based Environmental Reforms Exacerbate Environmental Injustice?, 56 WASH. & LEE L. REV. 111, 132-33 (1999) (discussing the potential for cap and trade systems to create “pollution hot spots”). In recent years, even some conservatives have criticized the usefulness of cap and trade systems. See Bob Inglis, Putting Free Enterprise to Work: A Conservative Vision of Our Environmental Future, 23 DUKE ENVTL. L. & POL’Y F. 247, 249 (2013) (characterizing cap and trade legislation as “a massive tax increase that would decimate American manufacturing”).
50. John Meyer, Using the Public Trust Doctrine to Ensure the National Forests Protect the Public from Climate Change, 16 HASTINGS W.-N.W.J. ENVTL. L. & POL’Y 195, 211-14 (2010); Paul A. Barresi, Mobilizing the Public Trust Doctrine in Support of Publicly Owned Forests as Carbon Dioxide Sinks in India and the United States, 23 COLO. J. INT’L ENVTL. L. & POL’Y 39, 53-54 (2012), see also David Takacs, The Public Trust Doctrine, Environmental Human Rights, and The Future of Private Property, 16 N.Y.U. ENVTL. L.J. 711, 761 (2008) (arguing that “certain resources never actually were subject to private usurpation, or never should have been”); Kylie Wha Kyung Wager, In Common Law We Trust: How Hawai’i’s Public Trust Doctrine Can Support Atmospheric Trust Litigation to Address Climate Change, 20 HASTINGS W.-N.W. J. ENVTL. L. & POL’Y 55, 79 (2014) (discussing public trust protections for the planet’s atmosphere).
51. See Ramo, supra note 7, at 129-30; David E. Adelman, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, 88 IND. L.J. 273, 285-86 (2013).
52. See Michael B. Gerrard, What Does Environmental Justice Mean in an Era of Global Climate Change?, 19 J. ENVTL. & SUSTAINABILITY L. 278, 284-86 (2012) (discussing potential dangers of inaction).
53. See, e.g., Eileen Gauna, Environmental Law, Civil Rights and Sustainability: Three Frameworks for Environmental Justice, 19 J. ENVTL. & SUSTAINABILITY L. 34, 57 n.70 (2012).
54. See Ramo, supra note 7, at 110.
55. See Adam Regele, Forest Offsets and A.B. 32: Ensuring Flexible Mechanisms are Firm, 19 HASTINGS W.-N.W.J. ENVTL. L. & POL’Y 163, 179 (2013) (“Verification and monitoring have the potential to be either the backbone of the California cap and trade regulation or its Achilles’ heel.”); see also Juscelino F. Colares, The Dynamics and Global Implications of Subglobal Carbon-Restricting Regimes, 25 GEO. INT’L ENVTL. L. REV. 417, 447 (2013) (discussing problems with global coordination of carbon monitoring and carbon mitigation strategies).
56. See Steven Ferrey, The Carbon Suite in the Hotel California: “We Are All Just Prisoners Here, of Our Own Device,” 23 S. CAL. INTERDISC. L.J. 451, 508 (2014) (“The matrix of often-successful recent litigation against California’s sustainable energy policy forms the legal contours of the future of national sustainable energy policy in the U.S.”); see also Beth S. Dorris, It’s Not Easy Being Green: Evolving Legal Frameworks to Address the Unanticipated Consequences of New Environmental Programs, 3 J. BUS. ENTREPRENEURSHIP & L. 237, 253 (2010) (“[I]t is the regulated community—the very community attempting to be environmentally protective by implementing the new environmental controls—that is most likely to bear liability for the unintended consequences.”).
57. See Astoria, supra note 25, at 252 (“The management of individual trees and relatively small collections of trees is not an effective means of mitigating GHG emissions.”).
58. Id. at 253 (“The protocol’s inclusion of tree plantings undertaken by utilities seems to be an entirely ad hoc throw-away to the utilities.”).
59. Daniel A. Farber, Pollution Markets and Social Equity: Analyzing the Fairness of Cap and Trade, 39 ECOLOGY L.Q. 1, 46 (2012).
60. See Hirokawa, supra note 5, at 234.
61. See discussion, infra at part V.
62. Citizens Climate Lobby v. Cal. Air Res. Bd., No. CGC-12-519554, 2013 WL 861396, at *2-4 (Cal. App. Dep’t Super. Ct. Jan. 25, 2013). This lawsuit is actually one of three recent suits challenging various aspects of A.B. 32. One of the two other suits involved a challenge to the Scoping Plan’s environmental review procedures, and the other argued that the cap and trade program violated federal civil rights laws. For a discussion of all three lawsuits against California’s climate change legislation, see Kaswan, supra note 48, at 16-20. For a discussion of other legal challenges to California’s energy regulations, see Steven Ferrey, Carbonite Legal Conflict in California, 5 SAN DIEGO J. CLIMATE & ENERGY L. 95 (2014).
63. Citizens Climate Lobby, 2013 WL 861396, at *7. See also Victor B. Flatt, C(r)ap and Trade: The Brave New World of Non-Point Source Nutrient Trading and Using Lessons from Greenhouse Gas Markets to Make it Work, 52 HOUS. L. REV. 301, 339 (2014) (discussing the imprecision of California’s offset protocols).
64. Citizens Climate Lobby, 2013 WL 861396, at *6.
65. Id. at *18.
66. See Our Children’s Earth Foundation v. California Air Resources Bd., 184 Cal. Rptr. 3d 365, 377, 382 (Cal. Ct. App. 2015) (holding that “the Board acted within its authority”).
67. For a discussion of international property rights conflicts for carbon sequestration projects, see David Takacs, Conservation International, Forest Carbon: Law and Property Rights (2009). Sequestration of atmospheric carbon through investment in reforestation and reducing emissions from deforestation and degradation (also known as “REDD”) is a booming business in the international marketplace. Id.
68. CAL. CIV. CODE §§ 833, 834 (2015).
69. Id. at § 833.
70. Id.; see also Grandona v. Lovdal, 21 P. 366, 368-69 (Cal. 1889) (explicating rules for adjudicating tree encroachment disputes in California).
71. CAL. CIV. CODE § 834; see also Kallis v. Sones, 146 Cal. Rptr. 3d 419, 420-22 (Cal. Ct. App. 2012) (affirming that trees growing across property lines belong to both property owners in common); Scarborough v. Woodill, 93 P. 383, 383-84 (Cal. Ct. App. 1907) (holding that when trees are owned by two coterminous owners, neither owner “is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree”).
72. Grandona, 21 P. at 369 (holding that encroaching trees “in so far as they were on or over [the plaintiff’s] land, belonged to the plaintiff ”).
73. Bonde v. Bishop, 245 P.2d 617, 621 (Cal. Ct. App. 1952). See also Cal. Civ. Code § 829 (“[T]he owner of land in fee has the right to everything permanently situated beneath or above it.”).
74. CAL. PEN. CODE § 602(a) (providing criminal sanctions for damaging trees); Booska v. Patel, 30 Cal. Rptr. 2d 241, 244-45 (Cal. Ct. App. 1994) (discussing the duty to prevent foreseeable injury when cutting encroaching branches); Rony v. Costa, 148 Cal. Rptr. 3d 642, 647-48 (Cal. Ct. App. 2012) (upholding civil liability for injuring trees).
75. Bonde, 245 P.2d at 621.
76. Altpeter v. Postal Telegraph-Cable Co., 164 P. 35, 36-37 (Cal. Ct. App. 1917); see also CAL. CIV. CODE § 831 (“An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown”).
77. Altpeter, 164 P. at 36-37.
78. Id.
79. Id. at 36.
80. CAL. GOV’T CODE § 39502(a) (2015).
81. Id. at § 39502(b).
82. For a discussion of the extent to which property rights are limited by utility easements, see generally Brian S. Tomasovic, A High-Voltage Conflict on Blackacre: Reorienting Utility Easement Rights for Electric Reliability, 36 COLUM. J. ENVTL. L. 1, 20-21 (“In one colorful, common refrain, angered residents will accuse their utilities of ‘butchering’ trees”).
83. Altpeter, 164 P. at 37-38 (noting that utility companies owe a duty of “efficient performance” to the public); see also S. Bell Tele. & Tele. Co. v. Constantine, 61 F. 61 (5th Cir. 1894) (discussing the origin of the rights of utility companies to cut trees that interfere with the operation of telegraph wires).
84. Altpeter, 164 P. at 37-38.
85. See discussion infra Part IV.A.
86. Cal. Air Res. Bd., Compliance Offset Protocol: U.S. Forest Projects § 7.1; see also discussion, supra Part II.A (discussing ongoing maintenance plan requirements for urban forest projects).
87. Henry W. Lawrence, The Neoclassical Origins of Modern Urban Forests, 37 FOREST & CONSERVATION HIST. 26, 26 (1993).
88. CARL SMITH, THE PLAN OF CHICAGO: DANIEL BURNHAM AND THE REMAKING OF THE AMERICAN CITY, University of Chicago Press, 154 (2006). Municipal tree ordinances are not a new invention by any means. In fact, ancient Greek city-states regulated the distribution of fruit grown on trees within the city. Mary Forrest & Cecil Konijnendijk, A History of Urban Forests and Trees in Europe, in URBAN FORESTS AND TREES 24, 24 (2005).
89. Sarah B. Schindler, Banning Lawns, 82 GEO. WASH. L. REV. 394, 400-01 (discussing history of landscape architecture); see also Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1556 (1993) (discussing landscape architecture as a desire by humans to create the reality that surrounds us).
90. Cheryl Kollin & James Schwab, Bringing Nature into the City, in PLANNING THE URBAN FOREST: ECOLOGY, ECONOMY, AND COMMUNITY DEVELOPMENT 3, 3 ( James Schwab ed., 2009).
91. For a discussion of recent urban reforestation efforts, see Lynn Scarlett, Introduction: Cities and Sustainability—Ecology, Economy, and Community, 11 SUSTAINABLE DEV. L. & POL’Y 2, 2 (2010).
92. Hirokawa, supra note 5, at 234.
93. See, e.g., S.F., CAL., PUB. WORKS CODE, art. 16 (1995).
94. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 805 (1984) (“It is well settled that the state may legitimately exercise its police powers to advance aesthetic values”).
95. Berkeley, Cal., HEALTH & SAFETY CODE, ch. 12.44 et. seq. (2012), available at http://codepublishing.com/ca/berkeley/html/pdfs/Berkeley12.pdf.
96. S.F., Cal., Pub. Works Code, art. 16, §§ 810A, 810B (1995) (protecting “landmark” and “significant” trees).
97. A 1986 study found that sixty eight percent of cities in the United States had a municipal ordinance that protected shade trees. See Tomasovic, supra note 82, at 21 (citing Henry D. Gerhold, Origins of Urban Forestry, in URBAN AND COMMUNITY FORESTRY IN THE NORTHEAST 1, 16 ( John E. Kuser ed., 2d ed. 2007)).
98. LOS ANGELES, CAL., MUN. CODE, § 12.42(A)(2) (1996).
99. CITY OF LOS ANGELES BUREAU OF STREET SERVICES, Frequently Asked Questions: Who Is Responsible for Maintaining Street Trees? (2014), http://bss.lacity.org/UrbanForestry/FAQs.htm (last visited June 1, 2015).
100. CITY AND CNTY. OF SAN FRANCISCO DEPT. OF PUB. WORKS, Tree Maintenance Transfer Plan (2014), http://sfdpw.org/index.aspx?page=1478 (last visited June 1, 2015). Some commentators fear that this will lead to the degradation of San Francisco’s urban forest. See John Wildermuth, S.F. Begins Turning Tree Care Over to Residents, S.F. Chronicle ( January 16, 2012, 4:00am), http://www.sfgate.com/bayarea/article/S-F-begins-turning-tree-care-over-to-residents-2558538.php (“There’s no guarantee property owners will spend the time and money needed to keep their trees healthy . . . .”).
101. Contreras v. Anderson, 59 Cal. App. 4th 188, 200 (1997); see also Restatement (Second) of Torts: Natural Conditions § 363 cmt. e (requiring property owners who control trees next to public highways to take reasonable steps to prevent harm when they are aware of the dangerous condition of the tree). Some municipalities do not permit private citizens to trim publically owned trees without first obtaining a permit. See, e.g., CULVER CITY, CAL., Culver City Tree Maintenance Frequently Asked Questions, http://www.culvercity.org/Government/PublicWorks/MaintenanceOperations/TreeMaintenance.aspx (last visited June 1, 2015).
102. CAL. CIV. CODE §§ 833, 834.
103. Air Res. Bd., CAL. ENVTL. PROT. AGENCY, Compliance Offset Protocol: Urban Forest Projects § 7.
104. See discussion, infra Part IV.A.
105. See Stern, supra note 20, at 621.
106. For a comprehensive discussion of tree disputes in California, see Ellis Raskin, The Definitive Guide to Tree Disputes in California, 21 HASTINGS W.-N.W.J. ENVTL. L. & POL’Y 113 (2015).
107. Irus Braverman, Planting the Promised Landscape: Zionism, Nature, and Resistance in Israel/Palestine, 49 NAT. RESOURCES J. 317, 327-28 (2009) (discussing accounts of reverence and admiration for trees).
108. Raskin, supra note 106, at 113-14. Three of these deaths occurred in a two-month period in 2013. Id. By way of reference, American citizens die from tree disputes at roughly the same rate as they do from malaria. See CENTER FOR DISEASE CONTROL, National Vital Statistics Report, Deaths, Final Data for 2011 (2011), available at http://www.cdc.gov/nchs/data/nvsr/nvsr63/nvsr63_03.pdf (recording three deaths from Malaria in the year 2011).
109. Raskin, supra note 106, at 114-15.
110. See Cal. Air Res. Bd., Compliance Offset Protocol: Urban Forest Projects § 7.1.
111. See discussion infra Part IV.C.
112. See discussion supra Part III.
113. See discussion supra Part III.B.
114. See Steven A. Kennett et al., Property Rights and the Legal Framework for Carbon Sequestration on Agricultural Land, 37 OTTAWA L. REV. 171, 187 (2005-2006) (discussing rights to trees as separable from land ownership). To some extent, firms already retain a property interest (in abstract terms) to credits equivalent to the quantity of carbon saved by planting the tree. However, the scholars mentioned here suggest that firms should retain a property interest in the tree itself, by virtue of the fact that the tree is carbon and the firm caused the accumulation of carbon in that tree.
115. Id.
116. BERKELEY, CAL., HEALTH & SAFETY CODE, ch. 12.44 et. seq. (2012), available at http://codepublishing.com/ca/berkeley/html/pdfs/Berkeley12.pdf.; see also Kucera v. Lizza, 69 Cal. Rptr. 2d 582, 589 (Cal. Ct. App. 1997) (striking down a challenge to a Tiburon, California ordinance that limited the height of trees on the plaintiff ’s property).
117. CAL. PUB. RES. CODE §§ 25980, 25981. See also Sher v. Leiderman, 226 Cal. Rptr. 698, 704-05 (Cal. Ct. App. 1986) (affirming a right to sunlight for solar energy collectors). California law does not protect sunlight for “passive solar collectors” like south-facing windows. Sher, 226 Cal. Rptr. at 882 (noting that this interpretation of the Act would extend “the scope of the Act to absurd proportions”). The law only protects “active solar collectors” designed for the purposes of “(1) water heating, (2) space heating or cooling, and (3) power generation.” Id.
118. See discussion infra Part V.B.
119. Cf. Richard Briffault et al., Public Oversight of Public/Private Partnerships, 28 FORDHAM URB. L.J. 1357, 1370-71 (2001) (discussing the absence of regulation when public goods become privatized).
120. Ramo, supra note 7, at 129-30.
121. David Takacs, Carbon Into Gold: Forest Carbon Offsets, Climate Change Adaption, and International Law, 15 HASTINGS W.-N.W.J. ENVTL. L. & POL’Y 39, 57 (2009).
122. United States Environmental Protection Agency, Heat Island Mitigation: Trees and Vegetation, http://www.epa.gov/heatisld/mitigation/trees.htm#1 (citing H. Akbari, et al., Peak Power and Cooling Energy Savings of Shade Trees, 25 ENERGY AND BUILDINGS 139-48 (1997)). Temperature statistics are listed in degrees Fahrenheit.
123. See Dan M. Kern et al., The Potential for Reducing Urban Air Temperatures and Energy Consumption Through Vegetative Cooling, Heat Island Project: Energy and Environment Division, Lawrence Berkeley Laboratory (1994).
124. Lynn Scarlett, Cleaner, Safer, Cheaper, 27 ENVTL. FORUM 34, 34 (2010).
125. See Barton H. Thompson, Jr., Ecosystem Services & Natural Capital: Reconceiving Environmental Management, 17 N.Y.U. ENVTL. L.J. 460, 460 (2008) (discussing awareness among scholars of the importance of achieving just distributions of natural capital); see also Christopher L. Lant, Natural Resources Sustainability from the Geographical Side of Ecological Economics, 44 TULSA L. REV. 51, 55-60 (2008) (discussing distributive justice challenges associated with natural capital); Douglas A. Kysar, Sustainability, Distribution, and the Macroeconomic Analysis of Law, 43 B.C. L. REV. 1, 63-70 (discussing the relationship between law and ecological economics).
126. See Hirokawa, supra note 5, at 249-50, 258-59 (“Urban forestry requires an investigation into the ties between the community’s environmental, economic, and social needs”). Hirokawa argues that the concept of resource management includes “biodiversity protection and sustainable access to natural resources.” Id. at 233.
127. See id. at 257-58.
128. See id.
129. E.g., Nancy P. Spyke, Heeding the Call: Making Sustainability a Matter of Pennsylvania Law, 109 PENN ST. L. REV. 729, 753 (2005) (advocating the use of “adaptive management practices at all levels of governance,” where adaptive management “is ideally a process of ‘adaptive co-management.’ ”); Palma Joy Strand, Cultivating “Civity”: Enhancing City Resilience with Bridging Relationships and Increased Trust, 50 IDAHO L. REV. 153, 159-64 (2014) (describing the role of “complex adaptive systems” in urban environments); Melissa K. Scanlan & Stephanie Tai, Marginalized Monitoring: Adaptively Managing Urban Stormwater, 31 UCLA J. ENVTL. L. & POL’Y 1, 67-68 (2013) (advocating for “iterative” adaptive management of urban stormwater runoff ).
130. Jonathan Liljeblad, Adaptive Co-Management Thresholds: Understanding Protected Areas Policy as Normative Conflict, 19 HASTINGS W.-N.W.J. ENVTL. L. & POL’Y 231, 236 (2013) (citing Byron Williams, Adaptive Management of Natural Resources—Framework and Issues, 92 J. OF ENVTL. MGMT. 1346 (2010)).
131. See generally Byron Williams, Passive and Active Adaptive Management: Approaches and an Example, 92 J. ENVTL. MGMT., 1371, 1371 (2010).
132. See Liljeblad, supra note 130, at 238.
133. See Lisen Schultz, et al., Participation, Adaptive Co-Management, and Management Performance in the World Network of Biosphere Reserves, 39 WORLD DEV. 662, 662-63 (2010); cf. Kai Chan, et al., When Agendas Collide: Human Welfare and Biological Conservation, 21 CONSERVATION BIOLOGY 59, 60 (2007) (criticizing the strategy of vesting decision-making power in local communities).
134. See Liljeblad, supra note 130, at 232.
135. See Spyke, supra note 129, at 753-54.
136. See Jonas Monast, Integrating State, Regional, and Federal Greenhouse Markets: Options and Tradeoffs, 18 DUKE ENVTL. L. & POL’Y F. 329, 346 (2008); see also James A. Holtkamp, Dealing with Climate Change in the United States: The Non-Federal Response, 27 J. LAND RESOURCES & ENVTL. L. 79, 86 (2007) (discussing the inevitability of “intertwining into a system that will facilitate, if not force, a comprehensive federal climate change program”).
137. See Regele, supra note 55, at 189-91 (discussing California’s efforts to coordinate forest offset programs with other nations); see also Colares, supra note 55, at 447 (“[A] multilateral treaty and the increased receptivity of environmental measures under the [World Trade Organization] would ensure a path toward GHG stabilization”).
138. See Ross W. Gorte, CARBON SEQUESTRATION IN FORESTS, 5-7 (2007) (discussing sequestration potential of different biomes).
139. Hirokawa, supra note 5, at 236-39.
140. For a discussion of factors that influence support for climate change policies, see Aaron M. McCright, The Social Bases of Climate Change Knowledge, Concern, and Policy Support in the U.S. General Public, 37 HOFSTRA L. REV. 1017 (2009).
141. Richard B. Stewart, States and Cities as Actors in Global Climate Change Regulation: Unitary v. Plural Architectures, 50 ARIZ. L. REV. 681, 689 (2008).
142. For an explanation of the virtues of the federalist system, see New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country”).
143. See Ramo, supra note 7, at 110.
144. See Schroeder & Bulkeley, supra note 3, at 359 (“Self-governance has been important in the initial stages of municipal climate policy”).
145. See Liljeblad, supra note 130, at 237-38.
146. See generally, Daniel A. Farber, Modeling Climate Change and Its Impacts: Law, Policy, and Science, 86 TEX. L. REV. 1655, 1698-99 (2008) (discussing the importance of listening to scientists when making decisions about managing Earth’s environment).
147. See, e.g., Raina Wagner, Adapting Environmental Justice: In the Age of Climate Change, Environmental Justice Demands a Combined Adaption-Mitigation Response, 2 ARIZ. J. ENVTL. L. & POL’Y 153, 171 (2011).
148. See Hirokawa, supra note 5, 257-58; see also Melissa M. Barry, Thinking Like a City: Grounding Social-Ecological Resilience in an Urban Land Ethic, 50 IDAHO L. REV. 117, 129-30 (2014) (discussing the historic debate between utilitarians and preservationists).
149. See Robin Kundis Craig, “Stationarity Is Dead”—Long Live Transformation: Five Principles for Climate Change Adaption Law, 34 HARV. ENVTL. L. REV. 9, 19-23 (2010). Kundis argues that “we have passed the point where mitigation efforts alone can deal with the problems that climate change is creating.” Id. at 9. Furthermore, in a 2007 report, the Intergovernmental Panel on Climate Change stated, “additional adaptation measures will be required to reduce the adverse impacts of projected climate change and variability, regardless of the scale of mitigation undertaken over the next two to three decades.” INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS REPORT: SUMMARY FOR POLICYMAKERS 14 (2007).
150. See David Gill, et al., Trees and Climate Change: A Guide to the Factors that Influence Species Vulnerability and a Summary of Adaption Options (2013), available at http://www.fauna-flora.org/wp-content/uploads/Trees-Species-Vulnerability-to-Climate-Change.pdf (“Trees represent one group of species that merit special attention for climate change adaptation planning”).
151. See RODERICK FRAZIER NASH, THE RIGHTS OF NATURE: A HISTORY OF ENVIRONMENTAL ETHICS 38-40 (1989); John Harte, Land Use, Biodiversity, and Ecosystem Integrity: The Challenge of Preserving Earth’s Life Support System, 27 ECOLOGY L.Q. 929, 933 (2001).
152. See James P. Karp, Aldo Leopold’s Land Ethic: Is an Ethological Conscience Evolving in Land Development Law? 19 ENVTL. L. 737, 738-40 (1989).
153. See Barry, supra note 148, at 128-36 (citing JANE JACOBS, CITIES AND THE WEALTH OF NATIONS (1984); JANE JACOBS, THE ECONOMY OF CITIES (1969); Aldo Leopold, Thinking Like a Mountain, in A SAND COUNTY ALMANAC, Oxford Univ. Press, 219, 228 (1966)); see also Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 296-300 (1994) (discussing historic conflicts between utilitarianism and preservationism in federal public land management).
154. JOHN RAWLS, A THEORY OF JUSTICE 254 (Harvard University Press, 1971) (“[E]ach generation receives its due from its predecessor.”); see Derek Parfit, On Doing the Best for Our Children, in ETHICS AND POPULATION 100 (M. Bayles ed. 1976) (discussing moral duties to individuals who are not yet born). For a discussion of ethical duties to future generations, see generally Anthony D’Amato, Do We Owe a Duty to Future Generations to Preserve the Global Environment?, 84 AM. J. INT’L L. 190, 197-98 (1990) (“[W]e should cultivate our natural sense of obligation not to act wastefully or wantonly even when we cannot calculate how such acts would make any present or future persons worse off.”); Anthony D’Amato & Edward J. Eberle, Three Models of Legal Ethics, 27 ST. LOUIS U. L. J. 761, 772-73 (1983).
155. James R. May, Not at All: Environmental Sustainability in the Supreme Court, 10 SUSTAINABLE DEV. L. & POL’Y 20, 28 (2009) (discussing sustainability goals in the Clean Air Act); Kenneth S. Weiner, NEPA and State NEPAs: Learning from the Past, Foresight for the Future, 39 ENVTL. L. REP. NEWS & ANALYSIS 10675, 10687 (2009) (discussing the National Environmental Policy Act’s goal of preserving natural resources for future generations by pursuing sustainable alternatives to future development); Harte, supra note 151, at 933 (discussing the Endangered Species Act’s goals of preserving species in danger of extinction). International responses to climate change have also embraced the concept of sustainability. In 2008, for example, the United Nations’ Secretary General called for member states to deepen their commitment to sustainable development. See Stathis N. Palassis, Beyond the Global Summits: Reflecting on the Environmental Principles of Sustainable Development, 22 COLO. J. INT’L ENVTL. L. & POL’Y 41, 53-54, 57 (2011).
156. See, e.g., Jude L. Fernando, et al., Toward Just Sustainability in Urban Communities: Building Equity Rights With Sustainable Solutions, 590 ANNALS AM. ACAD. POL. & SOC. SCI. 35, 36 (2003).
157. See John R. Nolon, The Law of Sustainable Development: Keeping Pace, 30 PACE L. REV. 1246, 1265 (2010) (discussing likely irreversible effects of anthropogenic climate change). Nolon states that “[b]ecause CO2 lingers in the atmosphere for centuries, some scientists believe that some of the consequences of climate change caused by anthropogenic CO2 emissions, such as polar ice melts, are irreversible.” Id. (citing Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 PROC. NAT’L ACAD. SCI. 1704, 1704 (2009)).
158. See Barry, supra note 148, at 139; Frank Biermann et al., Navigating the Anthropocene: Improving Earth System Governance, 335 SCI. 1271, 1306 (2012).
159. See Robin Kundis Craig & Melinda Harm Benson, Replacing Sustainability, 46 AKRON L. REV. 841, 843-44 (2013) (citing BRYAN G. NORTON, WICKED PROBLEMS: SUSTAINABILITY: A PHILOSOPHY OF ADAPTIVE ECOSYSTEM MANAGEMENT 132-38 (Univ. Chicago Press 2005)).
160. See id. at 864 (citing Carl Folke, F. Stuart Chapin & Per Olsson, Transformations in Ecosystem Stewardship, in PRINCIPLES OF ECOSYSTEM STEWARDSHIP 14, 14 (Stuart Chapin, Gary P. Kofinas & Carl Folke eds. 2009)); cf. Fred Bosselman, A Dozen Biodiversity Puzzles, 12 N.Y.U. ENVTL. L.J. 364, 381 (2004) (internal citations omitted) (arguing that the best way to respond to climate change is to preserve as much genetic diversity as possible).
161. Kundis and Benson, supra note 159, at 864; see Barry, supra note 148, at 124.
162. See Ashley Nance, The Plight of the Eucalyptus Trees in San Francisco: A Case Study on the Values and Considerations Involved in a Decision that Requires Comparative Valuation of Species, 20 HASTINGS W.-N.W.J. ENVTL. L. & POL’Y 429, 433-34 (2014). Nance argues urban planners should not favor native plants over existing ecosystems simply because of aesthetic preferences or nostalgia. However, Nance does believe that if human activity threatens the continued survival of a species, humans owe a duty to that species to ensure its future survival. Id. at 458.
163. For an excellent summary of the battles over non-native eucalyptus trees in San Francisco, see Nance, supra note 162, at 434.
164. See Gill, et al., supra note 150, at 4 (“[S]tudies now predict that various taxa will suffer from high levels of extinction.”).
165. See Margaret Byrne, et al., Climate-Resilient Revegetation of Multi-Use Landscapes: Adaption to Climate in Widespread Eucalypt Species 2 (2013), available at http://www.dpaw.wa.gov.au/images/documents/about/science/pubs/infosheets/sdis071.pdf (“There is good evidence in both species for plastic response as well as genetic adaption to climate”).
166. See Glen Martin, The Great Thirst, S.F. CHRONICLE MAGAZINE (Feb. 27, 2007), available at http://www.sfgate.com/green/article/The-Great-Thirst-Looking-ahead-to-a-post-global-2658978.php.
167. See Asmara M. Tekle, Lawns and the New Watershed Law, 95MARQ. L. REV. 213, 223-24 (2011) (discussing water conservation for urban ecological resources).
168. Itzchak E. Kornfeld, Groundwater Conservation: Conundrums and Solutions for the New Millennium, 15 TUL. ENVTL. L.J. 365, 380 (2002).
169. Id.
170. Paul Nussbaum, To Protect Water Sources, U.S. Is Pushing Restoration of Forests, PHILA. INQUIRER (March 1, 1999), available at http://articles.philly.com/1999-03-01/living/25511053_1_national-forests-forest-service-mike-dombeck.
171. See Kornfeld, supra note 168, at 380.
172. In some sense, ecological benefits are social benefits. However, for the purposes of this discussion, these will be treated as separate categories.
173. For an excellent overview of the physical and psychological health benefits of exposure to nature in urban environments, see generally Timothy Beatley, Biophilic Urbanism: Inviting Nature Back to Our Communities and Into Our Lives, 34WM. & MARY ENVTL. L. & POL’Y REV. 209, 211-15 (2009) (“The empirical evidence of biophilia, and of social, psychological, pedagogical, and other benefits from direct and indirect exposure to nature is mounting and impressive”).
174. See id. at 232 (discussing the ways in which well-developed urban ecosystems provide urban residents “the opportunity to socialize, have fun, build friendships, and deepen community commitments while tangibly reconnecting with the natural environment”).
175. Justice Douglas is perhaps one of the most important champions of environmental protections in our nation’s legal history. In his famous dissenting opinion in Sierra Club v. Morton, Justice Douglas argued that trees should have standing to sue for their own protection. 405 U.S. 727, 741-42 (1972) (Douglas, J., dissenting) (“[C]oncern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”).
176. Berman v. Parker, 348 U.S. 26, 32-33 (1954).
177. For a discussion of the ways in which urban forests can help eliminate social isolation, see Frances E. Kuo, Social Aspects of Urban Forestry: The Role of Arboriculture in a Healthy Social Ecology, 29 J. ARBORICULTURE 148, 148-50 (2003) (“The presence of trees and well-maintained grass can transform these no-man’s lands into pleasant, welcoming, well-used spaces.”); see also Beatley, supra note 173, at 211 (noting that urban ecosystems can help provide “a source of meaning and purpose”).
178. Heidi J. McIntosh, National Forest Management, A New Approach Based on Biodiversity, 16 J. ENERGY NAT. RESOURCES & ENVTL. L. 257 (1996); see William K. Stevens, Want a Room With a View? Idea May Be in the Genes, N.Y. TIMES (November 30, 1993) available at http://www.nytimes.com/1993/11/30/science/want-a-room-with-a-view-idea-may-be-in-the-genes.html.
179. McIntosh, supra note 178.
180. See Robert Michael Pyle, THE THUNDER TREE: LESSONS FROM AN URBAN WILDLAND 140-52 (1993) (arguing that a lack of personal contact with nature leads to feelings of alienation, apathy, and a “cycle of disaffection”).
181. See Hirokawa, supra note 5, at 236-37 (discussing urban forests as a source of confidence for adapting to climate change). For some communities, trees are symbols of national and civic pride. See Braverman, supra note 107, at 317-18 (discussing the pine tree as a symbol of Jewish and Israeli peoplehood). Just as cities compete for who has the best sports teams, best food, or best architecture, cities may one day compete for who has the best urban forest.
182. See Pyle, supra note 180, at 140-52 (discussing feelings of isolation that develop when humans lack exposure to nature).
183. See Hirokawa, supra note 5, at 236-39 (discussing the physical benefits of removing pollutants); see also Beatley, supra note 173, at 211-15 (stating that a connection with nature can reduce stress, enhance cognitive skills, and aid in moderating illness, ADHD, autism, and other child illness).
184. See Ann E. Carlson, Heat Waves, Global Warming, and Mitigation, 26 UCLA J. ENVTL. L. & POL’Y 169, 174-76 (2008) (discussing heat-related mortality rates caused by climate change).
185. Beatley, supra note 173, at 211-15.
186. See Alexandra Dapolito Dunn, Siting Green Infrastructure: Legal and Policy Solutions to Alleviate Urban Poverty and Promote Healthy Communities, 37 B.C. ENVTL. AFF. L. REV. 41, 42-44 (2010).
187. See id. at 65-66.
188. Manuel Pastor, Rachel Morello-Frosch, James Sadd & Justin Scoggins, Minding the Climate Gap: What’s At Stake if California’s Climate Law Isn’t Done Right and Right Away, 8 (2010), https://dornsife.usc.edu/assets/sites/242/docs/mindingthegap.pdf.
189. Adelman, supra note 51, at 285-86 (internal citations and quotations omitted).
190. See Hirokawa, supra note 5, at 257-58.
191. See Hirokawa, supra note 5, at 233, 249-50 (discussing why “[u]rban forestry requires an investigation into the ties between the community’s environmental, economic, and social needs”). Hirokawa argues that the concept of resource management includes “biodiversity protection and sustainable access to natural resources.” Id. at 234.
192. Id. at 249, 258 (arguing that “addressing [social problems] will require valuing and prioritizing among the services offered by urban forests”).
193. See generally Kenneth Pearlman, et al., Beyond the Eye of the Beholder Once Again: A New Review of Aesthetic Regulation, 38 URB. LAW. 1119 (2006) (discussing various aesthetic regulations in the United States).
194. Hirokawa, supra note 5, at 234.
195. Compare Mark Sagoff, On Preserving the Natural Environment, 84 YALE L. J. 205, 234-35 (criticizing the use of plastic trees in urban design) with John Nivala, Saving the Spirit of Our Places: A View on Our Built Environment, 15 UCLA J. ENVTL. L. & POL’Y 1, 5-6 (1997) (discussing the value of the built environment).
196. Lawrence Tribe, Ways Not to Think About Plastic Trees: New Foundations for Environmental Law, 83 YALE L. J. 1315, 1316 (1974) (“[W]e will too cleverly engineer ourselves into a synthetic hell”).
197. See Schindler, supra note 89, at 403-05 (discussing benefits of unified urban aesthetics).
198. Hirokawa, supra note 5, at 240.
199. See Schindler, supra note 89, at 418-19.
200. Robert Tuchmann, Public Projects and Citizen Participation: The Challenge of Coordinating Meaningful Public Involvement Over Time, 32 B.C. ENVTL. AFF. L. REV. 355, 357-58 (2005) (discussing the preservation of view corridors, neighborhoods, trails, and 1200 other measures “relating to urban aesthetics and architecture”).