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26 Harv. Envtl. L. Rev. 281 (2002)
The Reconstitution of Property: Property as a Web of Interests

handle is hein.journals/helr26 and id is 287 raw text is: THE RECONSTITUTION OF PROPERTY:
PROPERTY AS A WEB OF INTERESTS
Craig Anthony (Tony) Arnold*
I. INTRODUCTION
Property matters to the environment. In an odd and surprising irony,
a robust, comprehensive concept of private property is necessary to ad-
vance environmental values, and conversely, a decline in the importance
and meaning of property hurts environmental values. In particular, the
modern concept of property as a bundle of rights diminishes the impor-
tance of the natural environment and the human relationship with the
natural environment, even while the same concept arguably diminishes
the overall importance of property and enhances the potential for gov-
ernment regulation of private property.
The reader must take care to understand what I mean. I am not ar-
guing that privatization, market forces, and individual ownership are
more effective or efficient at achieving environmental protection. Nor am
I arguing against government regulation of private land use. Instead, my
analysis reaches a deeper, more foundational concern. The modern meta-
phor of property as a bundle of rights, or a bundle of sticks, is incompati-
ble with two essential principles of environmentalism, perhaps best rep-
resented by Aldo Leopold's land ethic: (1) the interconnectedness of
people and their physical environment and (2) the importance of the unique
characteristics of each object.' The appropriate environmental response
to this problem is to articulate a comprehensive understanding of prop-
erty emphasizing the importance of human-object relationships. Property,
even if it is in decline,' which is a questionable assertion, will not disap-
• Professor of Law and Director of the Center for Land Resources, Chapman Univer-
sity School of Law. I thank Luis Yeager, Denise Thompson, and Jon Dwyer for excellent
research assistance; Tom Bell, Eric Freyfogle, Susanna Kim, Dwight Kiel, Edward Rabin,
and Joseph Singer for useful suggestions; my colleagues for helpful comments at a faculty
colloquium; and Chapman University for a summer research stipend.
I ALDO LEOPOLD, A SAND COUNTY ALMANAC AND SKETCHES HERE AND THERE
(1949). For other discussions of an environmental ethic emphasizing human-object inter-
connectedness and object uniqueness, see, for example, Eic T. FREYFOGLE, JUSTICE AND
THE EARTH: IMAGES FOR OUR PLANETARY SURVIVAL 51-54 (1993) [hereinafter FREYFO-
GLE, JUSTICE]; Lynda L. Butler, The Pathology of Property Norms: Living Within Nature's
Boundaries, 73 S. CAL. L. REV. 927, 943-52, 981-86 (2000); Terry W. Frazier, The Green
Alternative to Classical Liberal Property Theory, 20 VT. L. REV. 299, 301, 309, 350 (1995)
[hereinafter Frazier, Green Alternative]; Eric T. Freyfogle, Ownership and Ecology, 43
CASE W. RES. L. REV. 1269, 1279-83 (1993) [hereinafter Freyfogle, Ecology].
2 See Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natu-
ral Resources: Questioning the Public Trust Doctrine, 71 IowA L. REv. 631, 693-702 (1986)
[hereinafter Lazarus, Conceptions]; Joseph L. Sax, Some Thoughts on the Decline of Pri-

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