This paper reviews recent developments in federal "takings" law, administrative law, and federalism, and discusses their implications for Northern Forest policy making. It describes a growing tendency to structure legal authority for natural resource decision making in a system of unilateral rather than correlative rights. Decision making powers receive differential levels of privilege, with private property rights first, centralized government second, and public involvement third. These trends are likely to make it difficult to evolve Northern Forest policy making structures, and suggest that they may have to be built either in opposition to current legal developments or in separate political institutions.

Like natural resources policy generally, Northern Forest policy reflects the structure and allocation of legal authority in the social system. Rather than attempting the impossible task of reviewing all of the legal factors affecting Northern Forest policy,[1] this paper focuses on three areas where there have been important developments recently: property rights and "takings" law, administrative law, and federalism. Because of their recent prominence in national discussions and at this Conference, property and takings doctrine are examined in more detail than the other two areas. The overall trend in the areas of property and administrative law is toward a preference for unilateral over interlinked or correlative rights, and toward imposing the primary costs of environmental uncertainty on public interests. The law of federalism is currently unsettled and contradictory; states and local institutions might end up either following the federal trends or becoming centers of increased innovation. For the substantive legal discussion to be intelligible, however, it is necessary to understand several points about the fundamental nature of law.

1. Law as Political Discourse. It is my impression that scientists and other informed citizens often view law primarily as a form of constraint on social action, a bit like the law of gravity or rules of molecular combination. While there is considerable truth in this conception, it misses one important feature of law. Its "objects" are "subjects" as well. In other words, we human beings are capable of imagining, thinking about, and often altering our future actions. Law is important in this process not merely as a constraint, but as an element in the imagery with which we construct futures. On one hand, this means that law can often be more constraining than "the rules" strictly require, since it can narrow our images of what is possible. On the other hand, law can also be empowering, since it frequently contains the raw images for creative reconfigurations of existing institutional practices. Moreover, unlike the law of gravity, human law can be changed if it is too constraining. Sometimes this happens from inside legal institutions, almost imperceptibly, through incremental changes as new developments create new problems and opportunities. Other times it is done from outside, through either constitutional amendment or revolution. What this all means is that in many important ways legal decisions are no different from other political decisions. They necessarily involve clarifying and choosing among conflicting values.

2. Partial Indeterminacy. It is an abiding, sometimes frustrating feature of law that it does not point to a single solution in many complex or difficult cases. Although the legal system's carefully cultivated image of neutrality and objectivity may make it difficult for legal professionals to admit this fact, lawyers understand it instinctively and acknowledge it implicitly when they are unable to predict the outcomes of cases, or when their predictions turn out to be wrong. The basic fact is simple: there are often several equally correct legal answers for a given problem, not just one.

Why this is so is not entirely clear. Perhaps part of the reason is suggested by the above section: answering a given legal question may involve choosing one future path over another, and that is a complicated political process. Another important reason may be that society and law include many deeply contradictory values, and these often point to different answers for any given question. Finally, it is not for me to reject the possibility that existing forms of legal analysis are fundamentally flawed. Perhaps someone will soon invent an analytical system that eliminates legal indeterminacy. For the time being, however, I would prefer to bet my money on less difficult inventions, like perpetual motion machines.

The fact that law often generates several technically correct answers means that the exact implications of any given decision are somewhat indefinite. Any particular analysis is usually subject to a plausible counter analysis. This is of course true of the analysis that follows. What I will try to do, therefore, is not concentrate on necessary implications of any particular decision, but rather illuminate what appears to be an underlying pattern in the developing body of law.

3. Ratchet Effect. Legal decisions are generally not the primary determinants of our social institutions. Yet in a subtle and sometimes almost invisible way, they can play a decisive role in shaping our institutions, and thereby in controlling our future. Perhaps the best way to describe this process is by analogy to a ratchet. Once a ratchet mechanism is set and moved even a very small amount, it will not go back to the original position. It will move readily in one direction, but not back in the other. This is a special attribute of the kind of political discussion called law. It develops a strong resistance to moving in certain directions, perhaps not as complete as that of a ratchet, but very asymmetrical nonetheless. To change direction it is necessary either to reverse the switch, or to break the tool. Reversing the switch can be done in a variety of ways, sometimes by changing who is doing the judging, sometimes through elections or legislation, sometimes by constitutional change. Breaking the tool is possible as well. But then, as with a real tool, there is often a very real risk one will need it again, and it is interesting how seldom substantial sectors of this country's citizenry have been prepared to break the tool.

The key point is that it is useful to view law as a combination of many little turns of the ratchet. Any particular turn might not go very far, and generally will appear to leave many options open. But cumulatively, the turns can add up to foreclose some possibilities and make others much more likely.

4. National Legal Culture. Because law is a way of thinking rather than just a collection of constraints, changes in law often reach farther than the formal jurisdiction of the institutions which make them. To oversimplify a bit, what happens in Washington is also likely to happen in Concord and Albany, because legal ideas and discussions operate in a national system. Accordingly, the ultimate importance of the developments discussed below will depend as much on their reception in the states and localities as on whether they legally bind those jurisdictions (some do, others do not).

Relatedly, whether out of a desire to harmonize legal doctrine or for lack of a better analytical technique, courts tend to rely heavily on analogies in resolving problems, so that a decision in one substantive area can have significant effects in another. For example, a decision by the U.S. Supreme Court that indigent individuals did not have the right to bring a court challenge against an Internal Revenue Service decision granting a tax exemption to non-profit hospitals (Simon v. EKWRO 1976) provided an important precedent for a later decision by the Court to deny environmentalists the right to challenge certain land management decisions by the Department of Interior (Lujan I 1990).

5. Law Allocates Authority. Although it may not be inherent in the nature of law, there is a common tendency in American Law to frame questions not in terms of what is the correct outcome or policy for a given problem, but in terms of who gets to decide -- who has "authority" or "discretion" over the matter. When 'rights' conflict, the question is, "whose right trumps?" Particularly when they are framed as constitutional determinations of property rights or governmental authority, these decisions can be very important, since they have the kind of ratchet effect described above.

Understand two fundamental points from the outset. First, American society has never been blessed with a homogeneous understanding of the meaning or scope of property. Property has always been a contested concept. Second, concepts of property have always been linked to correlative concepts of government, virtue (or public responsibility), and the good society. One cannot be understood without the other.

1. Colonial and Early American Concepts of Property. The Colonial Period and early Republic saw strongly held, vigorously practiced views of the "proper" way to organize "property" that were strikingly different from each other. In colonial New York, for example, many of the large land grants from the British Crown gave their recipients the power to conduct governmental functions as well, such as holding manor courts and appointing ministers (e.g., Kammen 1975). In those cases property rights included the ability to conduct government, generally in a centralized and hierarchical form.

Elsewhere such feudal models were early and resoundingly rejected. In much of colonial New England property in land was clearly subordinate to local community institutions. In parts of Massachusetts, for example, both title to land and political authority were held by the "founding fathers" of each new township, who generally distributed land rights according to the social roles of heads of households. Land was held, moreover, subject to a variety of community duties (Freeman and Mensch 1991).

In many Long Island communities equality in property distribution was a central value. Land was distributed according to family size, had to be lived upon by owners, and was not to be used for speculative gain or control over others. The underlying goal, evidently, was civic democracy, in which each citizen could play a coordinate role in the community (Mensch 1982).

Given the diversity of property forms, generalizations about property and government during the founding period must encompass ideas in some tension with each other. On one hand, property holding was widely viewed a prerequisite to political participation. Without property an individual would be dependent on others, and therefore incapable of developing and expressing an independent political will.[2] On the other hand, accumulation of a large amount of property was seen as a real threat to democracy. This was quite logical, since large property holdings had long been used in Europe and parts of the colonies to control the common people, and often to impede the development of democracy. By the time of the Revolution these ideas had been combined in a widely espoused Republican vision holding that democracy would best be achieved in a community with relatively egalitarian property holding. The aphorism of a South Carolina Pamphleteer could as well have been written in New England or another region: "Men in moderate circumstances are most virtuous. An equality of estate, will give an equality of power; and equality of power is a natural commonwealth." (Quoted in Freeman and Mensch 1991, p. 623). But there also existed a simultaneous, commonly voiced fear of democracy, based in part on the understanding that commoners elected to governmental offices were likely to push for property reform and possibly redistribution where property quite unequally distributed. Perhaps James Otis stated this view in its most pithy form: "When the pot boils, the scum will rise" (Wood 1969, p. 477). This concern underlay much of the "federalist" position, which also held that strong property rights were necessary to build a strong economy, and that a strong economy and central government were necessary to build a strong nation (see Rose 1989). This federalist vision seems closely related to a number of the legal developments discussed below.[3]

In sum, property holding was seen as necessary to the existence of real democracy, yet also as a real threat to it. Conversely, democracy was seen as necessary to prevent property from becoming oppressive, yet also as a real threat to the security of property.

2. The Role of the Courts. It became a role of the courts to define and effectuate a workable relationship between the partially contradictory ideals of property and democracy. To avoid the appearance of "taking sides," they sought to base their decisions on "legal" rather than "political" sources of authority. This strategy of course suffered from serious limitations, since the legal sources often contained contradictions and failed to define key terms. Moreover, the courts faced alternative, often conflicting sources of legal authority, including preexisting royal law, "natural" law, and emerging "positive" law, exemplified by the new state and federal constitutions and the statutes that their legislators soon produced.

Following the tendency noted above to frame fundamental policy questions in terms of who has the right to make a given decision, the American courts generally conceptualized conflicts between property holders and community groups or governments as questions of private versus public rights. More precisely, however, they preferred to avoid the impression that there was a direct conflict between public and private rights. Rather, courts presumed that if the public had a right to control property use, an individual land owner could not have a conflicting property right. A right could be held by one party or the other, but conflicting rights could not be held by both. This placed courts in the posture, not of making choices, but simply of determining who held the relevant right.

3. Property and Takings During the Colonial and Early National Periods.

Since the American system allocated important natural resource decision making powers to both property holders and governments, conflicts between them were inevitable. Yet the history of those conflicts remains incomplete and poorly understood for several reasons. First, and perhaps most surprisingly to the modern American mind, it was not clear at independence that state and local governments were required to compensate landowners for takings. This was the case even for the types of governmental actions that are more obviously "takings" than the regulatory constraints on private property use that much of this Conference has focused upon. Before the revolution most colonies did not compensate landowners when they built roads across their unimproved land (Treanor 1985). While most colonial legislatures compensated owners for "improved" lands (those in which substantial labor or capital had been invested), Virginia apparently did not (id.). Moreover, many colonial road building statutes provided that timber could be taken from adjoining land without compensation (id.).

Why it was presumed that public uses of private property did not necessarily require compensation is not simple or clear enough to answer definitively here. But several reasons should be noted. First, the common law courts of England had never held that compensation was required. In practice, Parliament generally provided compensation, but treated it as a privilege rather than a right of landowners (Stoebuck 1972). Second, in the English system land was held "of the Crown," and the sovereign generally retained certain rights with regard to all land. So there was usually at least an argument (repeated in slightly revised form in some of the cases described below), that the sovereign had the right to use the property in question for public purposes. The King's right to take large white pines for ship masts is a well known example in the forestry community. Third, although this fact has been conveniently suppressed by modern exponents of the common law tradition, common law courts were essentially administrative agencies of the Crown (e.g., Milsom 1981). Prospects for getting them to hold as a matter of law that the state must compensate owners for using private property were generally poor. Fourth, it was thus to Parliament, which gradually gained control over the public purse, that landowners could most hopefully look for compensation. The Magna Charta, often cited for the proposition that public takings of land must be compensated, in fact said something different: "No free man shall be ... disseised ... except by the lawful judgment of his peers or by the law of the land" (Article 39). Within the vague limits imposed as much by seemliness as anything else, this seems to have meant that either the owner or Parliament could give consent for public use of privately held property.

In sum, the legal and intellectual heritage of the early Republic assumed interlinked public and private rights over property. The primary protection of individual property holders was a strong legislature, which could curb a potentially despotic governor (the agent of the crown during the colonial period). The idea that all public uses of private property must be compensated was at best under development during the colonial and early national period. Of the ten state constitutions adopted in 1776 and 1777, only Vermont's had a provision requiring compensation for public takings of private property.[4] Massachusetts followed in 1780, but it took decades for all the other states to follow suit.

In a democracy, law is not only what the courts or legislatures say, but also what the people say as they try to create systematic ways to solve problems. Accordingly, an important part of the early history of takings law in this country probably took shape at the municipal and county level, where most land use decisions and governmental regulatory efforts probably occurred. Property owners' challenges to governmental decisions were probably most often also worked out at those levels. At present we know little about how they were resolved. It seems likely that many were negotiated out in processes that would today be described as "alternative dispute resolution." Unfortunately, the most readily available records for the early national period are the decisions of relatively high level state courts.

State judicial decisions on takings issues became fairly common in the early nineteenth century. Many involved the kinds of "physical occupation" takings described above. The Pennsylvania case of Feree v. Meily (1801), for example, allowed the use of improved land for a public road without compensating the owner. Gradually, however, a predominant view emerged requiring compensation in such cases. In perhaps a half dozen states, state court judges ordered compensation even though their state constitutions did not have clauses requiring it (e.g., Gardner v. Trustees of Newburgh 1816) and the Fifth Amendment of the U.S. Constitution did not apply to state government takings (see Barron v. Mayor of Baltimore 1833, Meidinger 1980).

The decisions in cases involving publicly imposed constraints on the use of property (rather than physical appropriation of property) followed a more complicated pattern. In 1819 the New York Supreme Court held the state could not require a landowner to build a fish ladder to reduce the salmon kills caused by a dam he had constructed to provide water power for his mill. The court reasoned that since the public had not retained the right to require free passage for fish when the land was originally patented to private ownership, it could not later do so through regulation (People v. Platt 1819).[5] Less than a decade later, however, the court held that the municipality of New York had authority to ban burials in a church yard without paying compensation, even though no such public power was retained when the land was patented, burials had been occurring for a long time, and many plots had been sold for future use (Coates Cases 1827).

Although there were some factual and doctrinal distinctions between the cases which could be used to rationalize their different outcomes, I do not think it is possible to fully reconcile them. In Platt, once the court found that the property owner had power to build a dam it concluded that the public could not have the power to require a fish ladder. In Coates, once the court found that the public must have power to regulate burials in a populous area, it concluded that the landholder could not have a protected property right to perform such burials. The takings game became one of deciding under which shell the pea should be found.

The same was true in other states, although some avoided the doctrinal acrobatics resulting from the proposition that government did not have a regulatory power unless it had traditionally exercised that power or expressly retained it upon granting ownership of a particular parcel of property. In Massachusetts, for example, the state Supreme Court held that the government could prevent land owners from removing sand and gravel from their property where such removal might lead to beach erosion and thereby damage the larger public interest (Commonwealth v. Tewksbury 1844). The Court was not interested in whether the state had previously imposed such regulations or had expressly retained power to do so when patenting the land to private ownership. Rather, the court began to sketch a general limit on private property use to protect the general welfare: "All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others, or to destroy or greatly impair the public rights and interests of the community..." (at 57). The basic principle seemed obvious: no property owner had a right to harm the public; therefore a law preventing harm to the public could not be a taking. In Commonwealth v. Alger (1851) the court extended the Tewksbury analysis and upheld a statute prohibiting construction of any wharf or other structure in Boston harbor beyond legislatively specified boundaries. Chief Justice Shaw's lengthy opinion made clear not only that the state had succeeded to prerogatives previously held by the Crown, but also that the legislature had a general power to impose such "reasonable restraints and regulations" on private property as it "may think necessary and expedient" (1851, p. 85). The legislature's judgment, in other words, was to be respected.

In sum, during the nation's first century the state courts developed an analysis seeking to decide which authority -- government or property owner -- had power to make a given decision regarding property. If the government had the power, the property owner did not. If the property owner had it, the government did not. Given the ecological interdependence of the world, and the growing social interdependence that the civil war and the industrial revolution revealed, that analysis may have been inherently unstable. But the portrayal by the Massachusetts court of a flexible police power made this analysis more adaptable than it might otherwise have been, and it was able to contain the inherent tensions of conflicting authority centers for some time.

4. Property and Takings in the Industrial Era.

The industrial revolution released powerful forces creating a national economy. Local sources of authority (both government and property) became less potent. Interdependence expanded to a scale in which fewer problems could be satisfactorily resolved in face-to-face negotiations. State governments responded with a series of new regulatory initiatives seeking to effectuate the public interest in property use. These initiatives were soon adjudicated in takings cases. In Munn v. Illinois (1877) the U.S. Supreme Court upheld state regulation not only of the use to which property was put, but also the of prices charged by elevators (and in related cases railroads). The Court's rationale blended the arguments that government had always had the power to regulate prices of essential services like wharves and ferries, that the ability to control monopolies was a necessary governmental power, and that the property owners had implicitly submitted to it by putting their property to a use in which the public had an interest. The property owners had also failed to show that the regulatory system did not allow them to earn a reasonable return.

In another decision of the same year, however, the Supreme Court made it clear that inability to earn a reasonable return on property did not necessarily create a compensable taking. In Mugler v. Kansas (1877) the Court upheld a state ban on liquor production which destroyed the value of existing spirits and of the highly capitalized facilities for making them. The state could inflict such losses without paying compensation under its power to "prohibit.. such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public". Using the rationale foreshadowed in Tewksbury and Alger, the Court also deferred to the legislature's finding of what constituted such harm to the public. A decade later it reaffirmed this rationale in Powell v. Pennsylvania (1888), holding that the state could ban sale of oleomargarine if it found such a ban was needed to protect the public.

One of the premises of these cases -- that regulation could be either within the police power or a taking, but not both -- suffered a fatal blow in Pennsylvania Coal v. Mahon, a 1922 case holding that a state law banning mining that might cause subsidence under public buildings, roads, and private dwellings was a taking. Justice Holmes' opinion acknowledged that imposing such a law might well be within the police power, but held that it "went too far" in infringing private property rights and therefore had to be compensated:

Justice Holmes also asserted that the law conferred a private, rather than a public benefit, and stressed that the case involved a landholder who had waived his rights to be free of subsidence when purchasing his land from the coal company. But the relative importance of the economic impact, redistribution, and contract modification rationales was not at all clear from his opinion.

The crucial effect of Mahon was to put the courts in the business of deciding whether regulatory restraints on property use went "too far" in reducing the value of property. They need not necessarily stop at deciding whether the regulations were of a traditional or monopoly restricting kind (Munn) or prevented harm to the public (Mugler). The courts were now faced with determining whether regulations were reasonable. Four years later it was apparent, however, that regulations could be upheld even if they imposed major reductions in property value. In Euclid v. Amber Reality the Supreme Court upheld a zoning ordinance even though the facts of the case indicated that the law reduced the value of some property by up to eighty percent.[6]

The combination of Munn, Mugler and Mahon did anything but clarify the standards by which regulatory takings claims should be analyzed. Together they provided grounds for almost any holding. Although the shells the courts were using had changed, they were still free to look under Mahon's 'diminution in value' test and find a taking, or to look under Munn's 'affected with a public interest' or Mugler's 'prevention of public harm' test and find a legitimate police power exercise.

5. Recent Takings Law.

Relatively few takings challenges reached the Supreme Court for several decades, although those it did decide generally upheld state regulation.[7] In the 1978 decision of Penn Central Transportation Company v. New York City (a challenge to a building restriction imposed under New York's historic preservation law) the Court gave up on articulating general principles and stated that takings cases required "essentially ad hoc, factual inquiries". At the same time, it articulated a concept with potential to mediate clash between private property and public regulation by stating that only "reasonable investment backed expectations" should be compensable. The underlying idea, of course, was that property owners can reasonably be charged with notice of broad trends in public policy, and that they should only be compensated for the lost value of property investments when those investments were reasonable under the circumstances.[8]

The Supreme Court returned to takings problems in a major but still confusing way in 1987. In Keystone Bituminous Coal Ass'n v. DeBenedictis (1987) it upheld a Pennsylvania statute almost identical to the one invalidated in Mahon. With regard to the diminution in value standard, the Court held that the law had not caused a total loss of economic value because the lost coal[9] was a relatively small fraction of the company's total coal interests. Thus while applying the formal requirements of Mahon, the Court analyzed the facts in somewhat differently. It also found, without citing anything more persuasive than the legislature's stated rationale and the fact that the law applied also when the mineral and surface estates were in the same hands, that the statute was aimed at protecting the public welfare rather than conferring a private benefit.

During the same term the Court sounded a warning that certain regulatory actions might be vulnerable to takings challenges. In First English Evangelical Lutheran Church v. County of Los Angeles (1987) it held that California's temporary ban on rebuilding in a recently burned over river valley could constitute a taking if the underlying regulation was invalid. Thus if the regulation was overturned, California might have to pay compensation for the time rebuilding was barred.[10] In Nollan v. California Coastal Comm'n (1987) the Court held a planning commission's attempt to require public access rights across beach front property in return for a building permit was invalid because the purpose which justified the building permit did not justify the access rights. The "nexus" between the regulation and the legitimate public purpose was not close enough.[11]

In a widely publicized case that reached the Supreme Court last year, landowner David Lucas challenged a 1988 South Carolina law banning new beach front construction on a barrier island. Lucas had bought two residential lots two years before the state law was enacted. He won in the state trial court, which awarded him $1.2 million, but lost on appeal to the South Carolina Supreme Court, which held the law to be a valid regulation of a 'harmful or noxious use' under Mugler v. Kansas. Justice Scalia's majority opinion for the Supreme Court distinguished the Mugler line of cases on grounds that they did not involve deprivations of "all economically beneficial use" of property. According to the decision such deprivations must always be compensated unless the uses involved had previously been prohibited under the state's common law property or nuisance law (Lucas v. South Carolina Coastal Council 1992).[12] The case was remanded to the South Carolina Supreme Court to decide the common law issues.

Since it applied only to a situation in which the economic value of the property was completely destroyed, Lucas could be portrayed as technically consistent with Keystone Bituminous (the lost coal and support estate in that case were analyzed as part of a larger package of property rights). Moreover, since so few cases are likely to involve complete destruction of property value, Lucas may not have sweeping direct applications. Nonetheless, like First English and Nollan, Lucas sounds a warning to public officials contemplating regulating private property and seeks to reshape the conceptual framework through which regulations of property use are viewed. Perhaps most worrisomely, it implies that non-compensable regulation is limited to ancient rules, and leaves little room for new regulation responding to changes in scientific knowledge. Accordingly, Lucas suggests without ruling that the costs of responding to new environmental knowledge are to be borne by the public, and that private land holders have no particular responsibility to be concerned with such matters.

Related developments have also occurred in other branches of government. Shortly before leaving office, for example, President Reagan issued Executive Order 12,630, which requires executive departments and agencies to carry out analyses of possible costs to private property holders of regulatory policies they are considering, report on possible takings implications, and the like.[13]

6. Changes in Incentives.

Taken together, the decisions described above have begun to alter our overall conception of public regulation. As indicated in the introductory section, law can be understood as a form of national culture, where holdings sometimes reach farther than their legal boundaries. It seems likely that our system of working assumptions has changed significantly enough to affect the behavior of property owners, government officials, and negatively affected citizens in systematic ways.

Incentives for Property Owners. If I were a lawyer with clients whose property values are significantly affected by public regulations, I would advise them that they might be able to demand compensation for that lost value. At the very least they could demand a variance or other release from the regulations. If the government agency refused to grant it I would advise them to threaten to sue. If I were a property owner I would demand a variance from the agency, and would direct my lawyer to bring suit if the likely value of winning (probability of winning times the money at stake) was considerably more than the cost of losing.

Incentives for Public Officials. If I were a public official I would try to protect my budget from the exposure involved in numerous, potentially expensive law suits. I would review existing regulations for financial exposure, be very careful about writing new ones, and be very receptive to demands for variances. If legally allowed to do so, I would try to get a promise not to sue for past losses in return for granting variances from existing rules.

Incentives for Negatively Affected Citizens. If I were a negatively affected member of the public I would begin to look carefully at the size of my wallet. Obtaining regulations that do not fall into traditional nuisance forms will be increasingly difficult to achieve. Those with adequate resources may find it easier to pay for easements than to obtain regulatory relief. Those with limited resources or organizational capacity, poor and diffuse communities, may find it very difficult to obtain relief at all.

I noted above that if the common law courts developed today we would probably call them administrative agencies. When they originally developed they were called "the King's courts." In essence, the King sent his agents out to the countryside to make sure that certain national policies were being followed and that local officials (landlords and the like) were not abusing their powers (Milsom 1981). By the time of the American Revolution the common law courts seemed natural to the framers. By occasionally protecting local citizens from abuses by local officials, they had established themselves in the public mind as a buttress of individual freedom against official power, thereby somewhat distancing themselves from the apparatus of "the state."

With the common law court system in place,[14] there was relatively little institutional innovation in the American legal system for approximately the first century of its existence. The rapid growth of the country after the Civil War, however, and especially the industrial revolution, created a felt need for new governmental mechanisms to handle complex problems that the common law courts were not well equipped for, especially various kinds of economic regulation like that at issue in the Munn case. After the Civil War many states began institutional experiments vesting regulatory power in elected commissions or appointed agencies. The federal government followed suit around the turn of the century.

The legitimacy of the new regulatory bodies was based partly on the argument that they were much like courts, but had the advantage of developing special expertise in their areas. In the states, like many state court judges, their heads were elected by the people or appointed by elected officials. The new agencies were thus expected to regulate in the public interest through a combination of rational expertise and popular accountability.

For about three quarters of a century most regulatory agencies operated in relative tranquility, quietly doing their jobs and when necessary hiding behind a mantle of expertise. Starting in the 1950s, however, increasingly serious critiques of the new agencies began to receive credence. Scholars, politicians, and social critics argued that agencies had general tendencies to become rigid and inflexible as they grew older (e.g., Bernstein, 1955), to put procedure over substance (e.g., Huntington, 1952), to protect their budgets over all else (id.), and possibly even to become captured by the very interests they were charged with regulating (e.g., Kolko, 1965).

The critiques and number of other forces beyond the scope of this paper led to changes in the way regulatory agencies did business in the late 1960s and through the 1970s. The primary innovations included:

1. increased public participation at most stages of agency decision making;

2. expanded record keeping and disclosure requirements;

3. intensified legislative oversight of agency operation;

4. newly required analytical procedures like environmental impact statements, cost benefit analysis, and the takings analysis discussed above;

5. heightened judicial review, meaning that judges would look much more closely at the quality of decisions made by agencies, and not just at whether they had power to make them.

Although there were some philosophical and practical tensions among these innovations, together they posed a possibility that administrative processes might become forums for civic deliberation about important public policies (Meidinger 1992). In other words, they might become events in which technically knowledgeable people joined with other strongly interested people to think through the implications, meanings, and desirability of alternative possible policies (Shannon 1992). A number of recent decisions by the Supreme Court, however, make that possibility increasingly remote as a legal matter.

1. Procedural Requirements. In Vermont Yankee (1978), one of the most important administrative law decisions of the last two decades, the Supreme Court barred courts from independently reviewing the adequacy of procedures used by agencies to decide important issues. Rather, the courts could impose only those procedural requirements clearly required by controlling statutes. In the same decision the Court upheld the Nuclear Regulatory Commission's choice of a generic rulemaking procedure to decide the probable environmental effects of nuclear waste disposal, rather than requiring it to deal with the issue in each individual licensing proceeding. In parallel developments courts have increasingly allowed agencies to make important policies without involving the public. In Hobbs v. United States (1991), for example, the U.S. Court of Appeals for the Fourth Circuit held that a new wetlands delineation manual substantially expanding the reach of wetlands permitting requirements was exempt from public notice and comment requirements. It also articulated a relatively narrow conception of what kinds of decisons require public participation.[15] The net legal effect of decisions like these is to allow agencies to use procedures which most readily allow them to implement the policies they are committed to with minimum opportunity for public challenge. The remaining legal avenues for disgruntled citizens are to appeal either to Congress, which might pass legislation either reversing the undesirable substantive decision or imposing further procedural requirements on the agency, or to the President, who would need to sign the legislation and might have independent power to direct the agency to be more responsive or to follow other procedures.

2. Statutory Interpretation and Agency Policy Making Authority. The Supreme Court further reduced the availability of substantive challenges to agency policies in Chevron v. NRDC (1984), upholding the EPA's decision to allow new source "bubbling"[16] in nonattainment areas. The Court ruled that if Congress has explicitly or implicitly delegated policy making authority to the agency in question, judges must defer to any reasonable interpretation by the agency of its substantive authority. The Court reaffirmed this deferential posture to agency readings of their legal authority in Rust v. Sullivan, upholding the Department of Health and Human Service's assertion that it had authority to ban funding of clinics offering information on abortion.[17]

3. Standing. The courts have traditionally required that anyone bringing a court challenge to an agency action have a significant stake in the decision. Exactly what the nature of that stake must be has varied over time, but in recent decades had expanded to include anyone who could plausibly argue that they had been or would be injured by an agency policy.[18] By expanding standing to obtain judicial review the courts effectively gave diffuse, non-commodity interests the power to require agencies to take their views into account in formulating agency policy. Recently the Court has been narrowing standing. In Lujan v. National Wildlife Federation ("Lujan I") it held that putative challengers of general federal land management policies had no standing because they had failed to show that they actually used land that would be mined as a result of the policy at issue. That they used lands "in the vicinity" was not enough. In Lujan v. Defenders of Wildlife (1992) ("Lujan II") the Court further narrowed standing by holding that neither past visits to an area likely to be affected by an agency decision, nor visits to any part of the contiguous ecosystem, nor an academic research interst in the species at risk, was sufficient to establish standing to challenge rules limiting application of the Endangered Species Act to United States territory and the high seas.[19]

4. Ripeness. One of the reasons the plaintiffs in Lujan I could not show standing was that the Bureau of Land Management reclassification policy they sought to challenge had not yet been applied to concrete pieces of land. Therefore they could not demonstrate that they used particular parcels of land that would be affected. Correspondingly, Justice Scalia's opinion for the Court also held that the policy was not reviewable due to the general doctrine of "ripeness," which requires controversies to be relatively concrete and specific before the courts will adjudicate them.

5. Enforcement and Other "Executive Functions". Finally, the Court has acted to insulate what can be described as core executive functions, especially enforcement decisions, from both judicial review and legislative oversight. In Heckler v. Chaney (1985) the Court held that a decision by the Food and Drug administration not to apply laws governing drug use to states performing executions by lethal injection was not subject to judicial review, and stated a general rule that agency enforcement decisions are presumptively not reviewable unless a statute says otherwise. In addition, the courts have also been hesitant to affirm demands by Congress for information on executive operations. The battle between the Reagan administration and the Congress over alleged violations of law in allocating Superfund clean-up moneys is a case in point.[21] During the Bush administration the activities of the Council on Competitiveness headed by Vice President Quayle generated similar controversy over the bounds of "executive privilege."[22]

More decisions could be cited, and there are of course some that do not fit with those noted here. Nonetheless, the overall pattern in the major administrative law decisions is fairly clear. Like the takings decisions, the administrative law ones change the incentives under which contending natural resource authorities operate.

Incentives for Agencies. If I were head of an agency, I would feel free to design my procedures so as to subject my preferred policy to the least possible public discussion and scrutiny. The new Forest Service appeals policy, making it much more difficult for non-commodity interests to challenge agency decisions, is a good example (Bobertz and Fischman 1993). When challenged in court, I would argue under Chevron that my agency has policy making authority and that our interpretation of the statute should be respected. When confronted by the public, however, I would argue, as agency officials so commonly do, that my "hands are tied" and that the complainant should "go talk to Congress." In general, I would try to keep policies fairly vague and abstract, which has the dual advantages not only of making them hard to challenge in court, but also of clouding who will win and who will lose until the last minute, when it will often be too late for affected small fry to organize and mount challenges. I would also pay special attention to how my policies affect property holders, especially large ones, since they are likely to have both the legal and economic resources to mount successful challenges. Finally, I would make as much policy as possible in executive meetings and on the telephone, since that kind of decision making will be hardest to track and to challenge.

Incentives for Regulatees and Commodity Interests. If I were a regulated interest or commodity user, I would feel fairly good about these developments, since they leave my ability to challenge agency actions relatively unaffected while limiting those of others. I would simply make it clear that I intend to defend my interests vigorously.

Incentives for Non-Regulatees and Non-Commodity Users. As a non-regulated, non-commodity using outsider to the agency I would try to find some non-law based means of influencing agency policy. My incentive structure would be bipolar. Where possible I would seek to cooperate closely with the agency and to make it at least somewhat dependent upon me by providing resources it needs (typically information or political support). If that failed miserably enough to make the alternative worth the costs, I would become extremely combative and raise enough hell to bring serious external pressure on the agency. Either way, I would start a Political Action Committee and focus much effort on getting a sympathetic ear in Congress.

Like many important natural resource systems, the Northern Forest crosses a variety of political boundaries. Managing it effectively requires both coordinating the policies of the different jurisdictions and allowing for local responsibility and responsiveness to local conditions. The system of relationships and allocation of authority among jurisdictions is therefore crucial to a functioning Northern Forest policy system.

For some time the predominant view among policy professionals was that regional resources require regional governmental bodies with ability to control sub-regional policies. For a variety of reasons that view has not translated into many effective regional governmental organizations. But there is one major translocal government -- the federal government -- which has the authority to perform many of the functions advocated by the regionalists. As demonstrated above, federal policies can affect local ones in several ways: in many cases they can legally control or "preempt" them; in other cases they can conceptually control the way policies are shaped and implemented. Both forms of power are quite important. There is also an intermediate form of power, in which the federal government allocates its resources to create incentives to shape state and local policies, which is very important.

Legally, the federal powers are extremely far reaching. The combination of the "supremacy clause" and various substantive clauses in the Constitution, especially the "commerce clause,"[23] have been interpreted by the federal courts to mean that if the federal government wishes to regulate in an area, it can probably do so. The only clear limit at present is that the federal government cannot compel a state to exercise its governmental powers in a particular way (New York v United States 1992). But it can create powerful incentives for a state to exercise its regulatory powers, and can directly regulate not only many activities within the state, but certain activities of the state itself.

In fact, the size, power, and scope of the federal government have grown quite dramatically since the late nineteenth century populist era. Although there have long been cases of federal agency cooperation with state agencies (especially[24] in agriculture), the more common pattern has been displacement of state activities. As with the property/government issues discussed above, the traditional assumption was that one level of government or the other can have authority in an area, but not both. If the federal government entered a field, it was usually presumed to displace the states.

Beginning in the late 1960s a model of "cooperative federalism" (also called "Partial Preemption") expanded rapidly, spurred primarily by the many new environmental statutes that were passed during the period. A basic premise of the new model was that some problems are so large and complex that the resources of both the states and the federal government are required to address them. In addition, they require uniform overall policies and also adjustment to local conditions, which may be highly variable. While it may not have been understood at the time as either particularly new or significant, cooperative federalism became the system of choice over the next three decades, and was applied to a large variety of areas that had previously been regulated by the states, completely controlled by federal regulation, or left largely unregulated. Today, for example, virtually all of the so-called "social regulation" statutes rely on it.

In practice, the federal partner has generally been the dominant one in these programs. In return for partial federal funding and the right to retain or share regulatory authority in specific areas (which the federal government otherwise could preempt), the states have been required to design and implement programs which meet a plethora of criteria.[25] Over time, including the Reagan-Bush years, federal controls over state regulatory practices appear to have become increasingly detailed and extensive (e.g., Meidinger forthcoming).[26] Under the Clean Air Amendments of 1990, for example, states responsible for administering the program are required to use a system of permits applicable to all significant pollution sources. They are also required to charge fees to cover the costs of administering the permits. The permits must meet numerous federal criteria and are subject to extensive federal review. In addition, the uniform permit system appears to be supplanting the state and local planning processes previously carried out to produce State Implementation Plans (SIPs) for setting requirements applicable to specific pollution sources.

The overall tendency of the Clean Air Act and other cooperative federalism programs appears to be toward a system in which the states are conceived of as field offices of the federal agency. A fairly consistent preference for this direction has been manifested by the Congress, the Executive, and the Administrative Agencies in recent years. The reasons are not as simple as a mere lust for power on the part of the federal government -- although that appears to be one of the reasons. Also important are a broad commitment to treating "like cases alike" and a desire for a rational system which, as one official told me, "doesn't reinvent the wheel in every state." The implicit argument is that it is more efficient to gather information from many places and analyze it in one. This implies an arrangement in which the local and state agencies and federal regional offices are the 'body' of the system and the federal headquarters is the 'brain.'

Unfortunately, the system of centralized analysis and policy making has not performed overly well in dealing with complex problems and anticipating new ones. A system with several brains discussing things with each other will probably be better both at spotting new problems and at developing new solutions. Thus the overall tendency to centralize policy and routinize implementation is not necessarily a cause for celebration.

There are several reasons for cautious optimism, however. First, the legal framework in most federal statutes is relatively flexible, leaving considerable room for state and local innovation, if the federal government chooses to support it. Second, despite the mix of indifference and distrust often manifested by federal agencies toward states and localities, some states have in fact been major sources of innovation in recent years.[27] Third, the reservoir of policy talent available to state and local governments appears considerably larger than it was a decade or two ago; most of the growth in government in recent years has occurred at the state and local levels. Fourth, the federal government appears increasingly beleaguered by its many involvements, and may be reaching a stage where it is prepared to give up some power. Fifth, a serious and influential rethinking of the division of responsibility in the federal system may be underway. Alice Rivlin (1992), for example, has suggested that the future effectiveness of the federal government may depend on returning some its responsibilities to the states.

There are of course also reasons to be pessimistic. Perhaps the most obvious is the rarity with which powerful institutions voluntarily give up power. In any case, simply reallocating power is unlikely to be sufficient. The scope and interlinked nature of modern natural resources problems require sweeping and intricate coordination among adaptable decision making institutions. New forms of power, information, and decision sharing will have to be developed, and that is inevitably a complicated and messy process. Whether the states will become laboratories of innovation in this area remains to be seen. To the extent state policy thinking and implementation is shaped by the way the feds have done it, the states are unlikely to generate the kinds of policy institutions we need to handle modern problems.

Finally, creating an effective Northern Forest Policy system will require a substantial level of interstate cooperation. That is difficult for two reasons beyond those already noted. First, individual jurisdictions typically presume their interests to be inconsistent. States and localities have a long history of trying to externalize costs to each other. Politicians take for granted the need to show their electors that they can get them more than a fair share of the overall pie. So it will take major institutional innovations to get jurisdictions to start working together in a proactive and mutually sympathetic way. Second, some forms of inter jurisdictional cooperation must be enforceable to be effective. While it is possible to create enforceable interstate agreements, doing so requires Congressional approval.[28] While such approval is possible, and could conceivably be made pro-forma for certain types of compacts,[29] obtaining it does pose a significant hurdle to interstate coordination. These are of course two major reasons for a federal regulatory role in many areas. But the federal government has not developed many effective ways of facilitating inter jurisdictional coordination and deliberation. The best it has been able to do is to impose uniform regulatory systems across the states, which, as suggested above, does little to enable them to develop innovative solutions to emerging problems.

In sum, many factors work against development of an effective interjurisdictional policy system. While generally not barred from attempting to create new policy institutions, states have limited legal authority in the current federal system. The dominant model of inter-jurisdictional policy making is hierarchical and bureaucratic. State creation of interjurisdictional relationships is limited both by the need to get Congressional approval and by the working assumption that their interests are incompatible. An important impetus may come from the growing understanding of cross-jurisdictional ecological interdependence. Some ecologists and environmental policy activists believe that new policy institutions are already emerging to reflect such interdependence (e.g., Shimizu 1992). Given the state of legal affairs describe above, however, such a movement will need great force and ingenuity to succeed.

The developments described in this paper evidence a general tendency toward structuring social authority in a system of focused, unilateral powers. Simultaneously, they move away from requiring coordination, negotiation, reciprocity, or even consultation among different authority holders. The general preference, in other words, is for tidily organized, largely hierarchical lines of authority. There is also a clear order of priority among the alternative centers of authority: private property runs a clear first, centralized government next, and public involvement a weak third.

The movement in this direction is not legally indefensible. It reflects a respectable reading of the Constitution and our political history. As I suggested above, however, that reading is not compelled by the Constitution or other legal sources. There are equally defensible readings which stress interdependence, joint decision making, institutional innovation, civic democracy, and so on. Thus the choice to structure institutions and authority in the way they recently have been moving reflects a broader political philosophy, one justified largely by extra-legal considerations. Although this is not the place to explore it in depth, I suspect the primary reasons for judges moving in this direction are a mix of the conservative lawyer's preference for clear lines of authority and a taste for decisional efficiency.

The question for our purposes is, what does this way of allocating authority mean for ecosystem management generally and emergent policy systems like the Northern Forest in particular? My answer is clear from what I have already written. I believe focusing authority and fracturing relationships in this way is likely to create serious obstacles for ecosystem decision making. Coordination is made quite difficult. Decision making is centralized in too few, too narrow institutions. Effective institutions will therefore have to be built outside and around existing ones, often in the face of their opposition.[30] That opposition has been made increasingly powerful by the legal developments discussed above.

I would like to briefly address two fundamental objections to this analysis. The first is that it is simply incorrect, because focused, relatively autonomous, hierarchical authority systems are the most efficient way to make decisions.[31] Efficient decision systems, moreover, will lead more directly to successful ecosystem management than any other approach. The second is that this system may not be the best for ecosystem management in the near term, but is the most democratically legitimate, and therefore the one to be preferred.

Efficiency. There is something to be said for the efficiency argument. Decisions can only be coordinated among so many actors before they become impossible to make. Many participants at this conference have probably experienced policy processes that ultimately failed in part because they involved too many parties. So the idea of constructing clear lines of authority has some appeal.

The problem for ecosystem management is that the emerging authority system fractures those lines of authority to create perverse incentives. First, there are many relatively autonomous authority sources in every ecosystem of any size. Since their rights are largely unilateral, they have no built in incentives to cooperate with each other. For them to do so, the stakes must be relatively high or the costs of achieving coordination (e.g., information, organizing, and negotiating costs) relatively low. Moreover, since they have no duty to share burdens, many stake holders are likely to hold out for high levels of compensation. As already suggested, however, such compensation will occur only if the public can be mobilized to pay for the necessary adaptations. Since it is expensive to mobilize public support for a policy, it will occur primarily in cases of crises. Many important problems will not be dealt with until they reach crisis proportions. Moreover, parties with an interest in the status quo will have an effective veto power over desirable policies, and may be expected to hold out for very high pay offs.

Finally, reduced legal interdependence seems to me likely to lead to reduced mutual understanding and information sharing. Institutionally autonomous resource managers have few incentives to discuss emerging problems or to come to understandings of shared interests that were previously not evident. Although they are not legally prevented from doing so, they are less likely to achieve the "skillful pooling and blending of .. knowledge" that generates successful ways of handling difficult resource management problems (see Ostrom 1990 p. 34). In sum, it seems likely to me that fragmenting authority will reduce the frequency of socially efficient research, compromise and cooperation.

Democracy. The inefficiency of divided authority is often defended as necessary to support democracy. Again, there is some truth to this, as evidenced in the early sections of this paper. Evaluating recent legal developments in terms of democracy, however, depends on what theory of democracy is applied. From the standpoint of what is often called "liberal" or "legal" democracy (Held 1987 p.251), these developments seem appropriate. The public will is expressed only by elected representatives. Citizens can affect it solely by petitioning and voting for and against representatives and other elected officials. Public agencies can be influenced primarily by influencing representatives. Bicameral decision making with executive approval places appropriate constraints on governmental action. Strong takings bars further protect a sphere of private liberty (for property holders, anyway).

From the standpoint of civic or participatory democracy, however, recent legal developments are much more troublesome (Held 1987 p.262). In effect, they remove much decision making from the hands of citizens and place it in the hands of either property holders or centralized government agencies accountable only to property holders or elected officials. Citizens are likely to have little sense of political efficacy, and therefore little sense of concern or responsibility for public problems. With little ability to affect them, citizens have few incentives to develop a sustained knowledge of public problems. They are likely to be effective only by purchasing property interests or influencing elections. The environment, in a word, will be a problem only for experts or politicians until it reaches crisis stages.

In sum, it is not easy to be optimistic about the decision making system fostered by the legal developments discussed above. It is unlikely to generate efficient, proactive, or creative policies for rapidly emerging environmental problems. While possibly increasing individuals' sense of power as property holders, it is likely to decrease their sense of power as citizens. Perhaps the system will fail badly enough at solving environmental problems to provoke a backlash which will redirect it. Perhaps it will simply become irrelevant, as new institutions emerge around and gradually displace the old ones. But that will be a difficult and halting process. Meanwhile, people will work to find ways to make intelligent policies for the Northern Forest. Unfortunately, so far as I can tell, the legal system is unlikely to be much help.

*This paper is based on a presentation made at the George D. Aiken Lecture Series on "Sustaining Ecosystems, Economies, and a Way of Life in the Northern Forest" on November 13, 1992, in Burlington, Vermont and was published in Sustaining Ecosystems, Economies, and a Way of Life in the Northern Forests, Washington, D.C.: The Wilderness Society. The author gratefully acknowledges helpful comments and questions by participants in the Conference.

†Professor of Law, State University of New York, Buffalo, NY 14260. eemeid@acsu.buffalo.edu

¹Decisions affecting the Northern Forest are made in a complex and variable mix of public and private, as well as local, state, and national institutions. Countless legal decisions affect the future of the Northern Forest. Many of them have been analyzed elsewhere (e.g., Adirondack Land Trust 1987; Binkley and Hagenstein 1989; Brenneman and Bates 1984; Diehl and Barrett 1988; Humbach 1989; Liroff and Davis 1983; Small 1989). This paper does not provide "a legal perspective" on the area. As will become clear in the remainder of the text, law embodies a number of conflicting values and therefore supports a variety of perspectives.

² Indeed, this view was followed through to the extent of denying paupers the right to vote. For a penetrating analysis of the apparent inconsistency between propertylessness and civic participation, see Steinfeld, 1989.

³ Today the federalist position is often linked to what modern political theorists call liberalism (not to be confused with the press cliches about traditional democratic party politics). In the liberal framework the primary goals of law are to protect individual autonomy and promote economic growth. Law does this in part by treating all individuals as uniform economic agents and by placing procedural, substantive, and institutional limits on government, while protecting its ability to foster national and international markets (e.g., Hayek 1976).

It should also be understood that a key difference between the federalists and the anti-federalists (the largest group of whom can probably safely be called civic republicans) was the level of government in which they vested greatest importance. Consistent with their label, the federalists saw creation of a strong federal government as essential, primarily because the dangers of "faction" (narrow, destructive self-interest) would be balanced out in a large, impersonal government and also because such a government would provide a provide a protective shell in which appropriate diversity among local and state governments could continue. Civic republicans believed that true liberty and community were only possible in local political institutions, where individual wills could actually affect decisions and diversity among communities could be protected. For a concise overview, see Rose 1989).

⁴ This was due in significant part to the abuses Vermonters felt they had suffered at the hands of the New York governor and legislature, which sought to repudiate land claims previously obtained by Vermonters from New Hampshire.

⁵ Because the New York State Constitution did not contain a compulsory compensation clause and the Fifth Amendment of the U.S. Constitution was not believed to apply to actions by states, the court formally relied on the "contracts" clause of Article I of the U.S. Constitution, which applied by its terms to the states ("No state shall ... pass any ... Law impairing the Obligation of Contracts..") Art. I, Sec. 10, Cl. 1. The adoption of the Fourteenth Amendment to the Constitution in 1868, prohibiting states from passing or enforcing any law which would "deprive any person of life, liberty, or property, without due process of law" provided a possible rationale for subjecting the states to a national just compensation requirement. In the 1896 Chicago, Burlington, and Quincy Railroad case, the Supreme Court did so, holding that the City of Chicago had to pay just compensation after taking a portion of a right of way owned by the Railroad to build a street.

It should also be noted that the public interest involved in the Platt case could readily be described as a claim to traditional property rights: a "positive easement" and possibly an "affirmative covenant" in favor of the public. Easements and covenants involve rights of one person or group to affect use of property owned by another. A positive easement is a right to use the property directly, such as by crossing it or running a conduit over it. A negative easement is a right to prevent the owner from using property in a particular way, such as burying people on it, as in the Coates Cases. Covenants are rights that for technical reasons do not qualify as easements. A right to require an owner to do something affirmative with her property, such as build a fish ladder, would usually be labeled an affirmative covenant.

⁶ In Mahon, interestingly, the Pennsylvania Coal Company had not even introduced any evidence on the amount by which its property was devalued. Seven years earlier, in Hadacheck v. Sebastian (1915), the court had upheld an ordinance barring a landowner from operating a brick factory despite evidence the law lowered the property's value from $800,000 to $60,000.

⁷ Among the most significant were Miller v. Schoene (1928), upholding a law requiring the destruction of one landowner's diseased cedar trees to protect a neighboring landowner's apple orchard and Goldblatt v. Town of Hempstead (1962), upholding a law requiring the closing of a sand and gravel quarry. Many challenges never reached the Supreme Court, as important state decisions implemented a substantial presumption in favor of regulatory validity. Following Goldblatt, for example, an appeal of a California decision upholding a zoning ordinance prohibiting rock and gravel operations (Consolidated Rock Products v. Los Angeles 1962) was dismissed by the Supreme Court. An important Wisconsin decision upholding an ordinance regulating wetlands development (Just v. Marinette County 1972) was not appealed to the Supreme Court.

⁸ The Court's subsequent decisions did not create a very predictable pattern, and indeed can be made to look quite ad hoc: thus it held that requiring a marina to allow people to cross its property to get to navigable waters was a taking (Kaiser Aetna v. United States (1979), but requiring a shopping center to let people use its property for soliciting contributions was not (Prune Yard Shopping Center v. Robins (1980); barring sale of property was not a taking (Andrus v. Allard (1979), but barring bequest of property was (Hodel v. Irving (1987).

⁹ This also included the "support estate" recognized by Pennsylvania law.

¹⁰ This was important because the previous general belief had been that the remedy for a regulatory taking was simply invalidation of the law. An important rationale was that separation of powers should constrain courts from making decisions about the expenditure of public funds.

¹¹ Doctrinally, together with the Lucas case discussed next in the text, this may mean that the Court will require a heightened level of scrutiny for laws impinging on what the court referred to as "the right to build on one's own property." The state had refused to grant the Nollans a permit to build a much bigger house than the one that existed on their beach front property unless they agreed to let the public pass across their beach above the mean high water mark.

Another reason this case may have triggered heightened scrutiny was that the proposed permit condition required the property owners to accept a physical invasion of their property, a type of situation in which courts have generally been quick to find a taking because the public actually occupies some of the owner's property at times.

¹² Justice Scalia cited language from the Supreme Court's decision in Agins v. Tiburon (1980): "the Fifth Amendment is violated when land use regulation 'does not substantially advance legitimate state interests or denies an owner economically viable use of his land'." But the Supreme Court decision in Agins actually affirmed a California State Supreme Court decision upholding a zoning regulation (on grounds different from the California Court's). The same was true of later cases citing the Agins language (including Keystone Bituminous).

It should also be noted that the Supreme Court had previously said that a regulated property use need not be a nuisance for the regulation to survive a takings challenge. "Nor is it a of controlling significance ... that the use prohibited is arguably not a common-law nuisance..." (Goldblatt v. Town of Hempstead 1962)(upholding a regulation prohibiting operation of a sand and gravel quarry).

¹³ It will of course be interesting to see what position the new administration adopts with regard to this Executive Order. To my knowlege, no announcement has been made.

¹⁴ The system in fact typically involved two kinds of courts: law and equity. Perhaps the most fundamental idea was that law courts would develop and apply across-the-board rules. Where those rules should not be applied due to differences in local circumstances, or where they were not stringent enough, the equity courts could be called upon to correct the limitations of the common law decisions. Gradually, although still thought of separately, the two types of courts were brought together in the same personnel and buildings. It was a 'bureaucratic consolidation' that took a long time, however.

¹⁵ Although the courts were perfectly willing to allow the agency to avoid public consultation, the resultant outcry was large enough that the agency eventually decided to subject the proposed wetlands definition to public comment, all the while vigorously maintaining that it had no obligation to do so.

¹⁶ Under the "bubble" policy the agency only reviews modifications of major pollution sources when the total amount of pollution coming out of an imaginary bubble over the plant shows a net increase.

¹⁷ The Supreme Court has not necessarily adhered religiously to this policy of deference to the interpretations of agencies with delegated policy making authority. But the odds of challenging an agency's statutory interpretation to which the court is not in some way hostile are fairly remote at present.

It should also be noted that statutory interpretation can be interpreted as posing "questions of law," answers to which courts are experts in producing. Therefore, deferring to agencies' statutory interpretations is not as obviously appropriate as deferring to their factual determinations.

¹⁹ During the early history of administrative regulation it was quite difficult to show standing to obtain judicial review. Plaintiffs had to claim injury to a traditional common law property, contract, or liberty right. In practice, that generally meant only regulated interests were allowed to bring suit. In the early 1970s the courts began expanding standing, by recognizing non-pecuniary interests like esthetics, by recognizing that regulatory statutes also created new legal interests in their enforcement, and by allowing associations to sue on behalf of their members so long as some members could plausibly argue that the contested agency action or inaction had injured them.

²⁰ In a portion of the decision not concurred in by a majority of the court, Justice Scalia also asserted that standing should be denied because the challenger had not a persuasive showing that if it won the case the problem about which it was concerned (extinction of certain species in this case) would be solved. Justice Scalia's position, of course, was that the species involved might well become extinct regardless of the outcome of the case.

Justice Scalia's overall agenda appears to be to create sharp divisions among the roles of the legislative, executive and judicial branches of government. In his ideal "separation of powers" scheme the legislature would be limited to making laws, the executive would have exclusive power to implement them, and the judiciary would adjudicate the legal rights of individuals. The only "political" role of the judiciary would be to protect individuals and minorities from the tyranny of the majority. It would be expressly precluded from "prescri[ing] how the other two branches should function" (Scalia 1983). Interestingly, Justice Scalia has also vigorously argued that the executive must have power to nullify laws by choosing not to enforce them (Id). Moreover, he has suggested that citizen suits enabling members of the public to enforce environmental laws by suing either agencies or regulated parties may unconstitutionally infringe on the exclusive executive enforcement power (see Boyer and Meidinger 1985). Thus far Justice Scalia's grand scheme has not been embraced by a majority of the Court, but the Court has handed down a number of decisions leading in that direction. For a careful consideration of how environmental groups should react to these developments, see Sheldon (1992).

²¹ The primary exception is a "substantive" or "legislative" rule which, although general, requires those subject to it to adjust their conduct immediately. Thus, binding regulations are subject to judicial review even though they may not have been implemented by compliance or by prosecution for noncompliance.

²² On this case in particular and the problem of executive privelege in general, see Shane 1987.

²³ See e.g., Meyer v. Bush (1991), involving an effort to get information on the Council's activities under the Freedom of Information Act (FOIA). Although the federal district court concluded that the Council was an "agency" for purposes of FOIA, it acknowledged that the records sought might be exempt from disclosure under the "deliberative process" exemption in FOIA, an exemption that proponents of a strong executive argue is required by the Constitution.

²⁴ "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" Art. 1, Sec. 8, Cl. 3.

²⁵ A key legal characteristic of the system is "partial preemption." Under partial preemption the federal government bars state regulation of a given area or subject matter unless the state meets certain federally set criteria. Typically those criteria include a requirement that state substantive standards be at least as stringent as federal standards and that the state show the capacity and proclivity to enforce them. Thus the state retains some residual policy making authority, since it could impose more stringent regulatory standards or regulate aspects of the problem not dealt with by the federal standards. The state also retains a considerable enforcement authority, since the responsible federal agency typically has the power to designate it as the primary enforcement agent of the regulatory program. The federal agency usually has concurrent enforcement authority, however, and the power to override state enforcement decisions. To receive federal approval (often called state "primacy" or "delegation") the state usually must submit a plan detailing the rules it will impose, the organizational structure and policy mandate of the implementing agency, and evidence of a sufficient grant of authority from the state legislature and executive. The primary incentives for a state to submit such a plan are the promise of federal funding for part of its program activities and the desire to avert a complete federal takeover of the area.

²⁶ It should be noted that the Reagan administration promulgated Executive Order 12,612 directing federal agencies to perform "federalism assessments" of pending regulatory actions and requests for legislation. There is little evidence, however, that it has had any significant effect on the behavior of federal agencies.

²⁷ My impression is that there has been great variation among states in environmental and natural resources policy, and even within them in different cases. Sometimes they have been extremely creative, responsible, and effective; other times they have been extremely reactionary, irresponsible, and ineffective.

²⁸ The Constitution provides that "No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State ..." Art. I, Sec. 9, Cl. 3.

Although this clause could reasonably be read as applying to all interstate agreements, the U.S. Supreme Court long ago limited its application to "political" compacts, those affecting the balance of power between the Union and the states. Virginia v. Tennessee (1893).

²⁹ The Low-Level Radioactive Waste Policy Act of 1980 explicitly encouraged states to form interstate compacts to arrange for disposal of low level radioactive waste. Compacts have nonetheless been very difficult to negotiate.

³⁰ For one of the few sustained analyses of the relationship between legal rules and ecosystem management thus far written, see Boyer 1990.

³¹ By the term "efficiency" here, I mean decision making which ensures that the benefits of resource management decisions exceed the costs and which is itself as inexpensive as possible.