Permits, Property, and Planning in the 21st Century: Habitat as Survival and Beyond

Abstract

In our legal tradition there are permits and there is property and they are like oil and water. The norms, institutions, and agents of one seem antagonistic — even antithetical — to the other. Property is reliable, tangible, and intimately bound up with one’s autonomy, one’s severability from society. Government permissions, by contrast, are fleeting, revocable, and inherently social. They are the mechanism of choice by which individual plans for assets are filtered and reconciled with collective needs. If we are to get around the impasses we have reached today in protecting nature’s composition and function, however, we must strive to better combine permits and property and leave behind exactly the sort of distinctions we now use in differentiating permits from property. In this piece, I argue that our instinctual distrust of lumping property and permits together ought not to inhibit us from exploring why or how permissions and property are comparable. Property rights in our legal system are bi-modal: they secure privileges, powers, and immunities as against other agents within a legal jurisdiction while simultaneously doing so separately against the agents of that legal jurisdiction. Ownership works its magic in part by securing to owners a subordinate form of sovereignty: standard, recognizable forms of dominion that order behaviors without the need for constant recourse to fine print. And property’s bimodality — its nature as right in rem and as right against government — invariably chills discussions of making government permissions more “like” property. Modeling Endangererd Species Act (ESA) habitat permissions after property, however, might paradoxically empower our government agencies to protect more habitat more effectively over the long term and at broader scales, in good part because doing so could: (1) simplify the mechanics of creating, adjusting, and reordering these managerial permissions; (2) enhance market and non-market actors’ capacities to assess, compare, and benchmark their own (often quite disparate) conservation actions and plans; and (3) better standardize the risks being shifted by the permissions the government has created. Given our diversity of owners and regulators, the core challenge we face in the looming crisis of habitat loss and disturbance is enabling and prompting broader-scale cooperation. The ESA permissions that the government has been generating are, in a nutshell, too small, too customized, too opaque, and too bound up with the highly imperfect information that happens to be available at their origination. If they were modeled to function more like property, they would be more standardized, more recordable and searchable, more legally explicit, and likely more interchangeable and exchangeable as such.