Private property is a pillar of America and is regarded by many as an inherent right, cemented in the American ethos since the settler colonial project started in 1492. But when dissected, the implications of this “right” is complex, nuanced, and often harmful. Does private property, in terms of land ownership, entail the right to use the land however the owner wishes? Do individuals and the public have a right to environmental protection and to the prevention of harms perpetuated on others’ private land? Is it justified for the state to intervene on an individual’s use of private property for the sake of environmental regulations? And backgrounding all these questions is one of justice: what does it even mean for Americans to have a “right to place” or own private property on stolen land? 

 

The American concept of property is a construct rooted in John Locke’s theory of private property and natural law. Addressing the private property and environmental debate today requires to first unsettle Locke’s notion of property rights and to build an understanding of the connection between property rights and settler colonialism. In this paper, I explore the dominant theories of property rights and their implications, the tensions between environmental regulation and private property, and how this debate applies to the case study of growth management policies in Portland, Oregon. Through dissecting the roots of private property, I seek to unsettle the assumptions that perpetuate environmental exploitation and injustice without undermining the need for a nuanced approach to property rights that understands the central role property plays in American society. 

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What are property rights? Do they give individuals a “right to place”? The dominant hegemonic theory of property in the United States draws from John Locke’s conception of private property as an inherent right. He claims the right to own private property is an element of “natural law,” predating any societal arrangement in the “state of nature” (Snyder 1986, 726). Locke argues that protection of property is the very reason people consent to be governed, so private property is absolutely integral to the character of the state (725). Locke’s theories are fundamental to the conception of property in American society, and the way society and governmental bodies interact with property rights. Richard A. Epstein argues along a Lockean vein concerning property rights in his book, Takings: Private Property and the Power of Eminent Domain (1985). He uses the metaphor that property ownership is a bundle of sticks consisting of possession, use, and disposition, and discusses what happens when sticks are taken out of the bundle, usually through the eminent domain clause (59). Epstein discusses the role of police power in property rights, arguing that police power is an “inherent attribute of sovereignty” in government (108), but if unrestricted can infringe upon private property ownership (109). He argues police power should only be used to protect property against force, fraud, and very few environmental harms, like pollution, but only because it directly violates individual rights (121). Epstein concludes his evaluation of the necessity of nearly unrestrained private property ownership with the assertion that owners should be compensated for regulations on their land that result in economic or aesthetic losses (123). Through this vein, an individual has a “right to place” if they own the land, and that “right to place” means almost any regulation or infringement on that right must result in just compensation.

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This conception of private property rights, as understood and promoted by John Locke and scholars like Richard Epstein, can actively harm and violate communities that follow other theories of property, namely, the indigenous communities within the United States. Settler colonialism in America attempted to destroy indigenous peoples’ “right to place” by expropriating land, forcing assimilation, and committing mass murder. Locke’s theory of private property provided European settlers with justification for these actions, as they attempted to reason that the indigenous people used the land “unproductively,” and their own acquisition of property is an inherent right. This destructive theory of private property was violently imposed onto indigenous communities through the project of settler colonialism, and continues to erode indigenous land rights today (Murray 2022, 2). Julian Brave NoiseCat describes the destruction of the environment and indigenous land expropriation resulting from the American concept of property, and argues that justice could be found by uplifting indigenous voices about land use and moving away from the dominating logic of limitless productivity (Brave NoiseCat 2017). Indigenous conceptions of property and relationships to land constitute a very different “right to place” than the Lockean and European theories. Settler colonialism is a clear example of the dangers of Locke’s private property right theory when it is taken to the extreme; understanding this approach to property and place is integral to approaching the relationship between environmental regulation and property rights. 

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The dominant American theory of property is challenged in both the theoretical and practical realms, particularly concerning environmental regulation. It can be argued that a “right to place” entails the right to an ecologically sound and healthy environment, not exclusively property ownership. Gary Varner argues that in this age of environmental regulation, the very idea of private property is being redefined and nearing obsoletion. Using the same bundle of sticks metaphor, he discusses how removing sticks from the bundle brings society closer to “eclipsing” land as private property altogether. The more the government regulates private land, the less control the individual has, causing the very notion of private property to lose its whole meaning (1994, 146). However, Varner is not arguing against the private property’s obsoletion. He understands the necessity of environmental regulation, and disagrees with Epstein’s assertion that all restrictions must result in compensation. Obligatory compensation would make any environmental regulation “prohibitively expensive,” and therefore unfeasible (149). Varner proposes that to bridge this gap, we should reframe how we view the harms that environmental regulations seek to address; we should move from a focus on individual harms to one on public rights. Joseph Sax’s concept of public rights aims to make visible the harms one landowner can cause other landowners because of how they choose to use their property, especially concerning the environment (157). Ecological processes should fall under this domain of public rights, as they are interconnected far beyond the individual and cross the boundaries of all private properties. It is from this thought that Varner concludes that every stick may then be taken without compensation, leading us to the end of private property. 

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Varner puts forth a compelling analysis of the tensions between environmental regulations and private property, and illustrates how a reframing of the very notion of private property is necessary to prevent environmental injustices to both property owners and the property itself.  His argument, of course, lies on the assumption that land as private property has any legitimacy in the first place, but he is also entering into this conversation from a realist standpoint, working with the dominant conception of property at hand. Varner’s work sheds insight on the debate over urban growth management in Portland, Oregon. Until 2004, Portland had policies in place called the “urban growth boundary” first set in the 1980s, meant to limit the development of suburban sprawl into the countryside (Layzer 2012, 494). Sprawl can be detrimental not only for the environment by encouraging scattered development on relatively undeveloped land, forests, and wetlands, but it also tends to segregate communities economically and socially, and reduces resources for the urban areas (489). Portland’s growth management policies reflected a growing dissatisfaction with the suburbanization and development spreading across America, and seeked to redress issues of inequality. Despite community involvement and civic engagement in the processes, the policies were not well received by everyone (504). The policies heavily regulated what landowners could do with the land they owned outside the urban growth boundary, and was also disliked by those who wished to buy and develop land outside the boundary. After a state-wide referendum, a new law passed, called Measure 37. It allowed property owners to petition to be compensated or excused from the growth management policies if they bought the land before the policies were enacted, or if their land’s market value decreased because of the policies (505). Essentially, property owners could file for reprieve if they suffered from “lost productivity,” and since the government did not have enough resources to compensate everyone, they had to excuse them from the rules (507). A huge amount of Measure 37 claims were filed and most approved, unraveling much of the work of the original growth measurement policies. Measure 37 reflects Varner’s claim that compensation for all environmental regulation would make it prohibitively expensive, preventing the ability to promote environmental sustainability. Property rights, defined in Epstein’s sense of absolute discretion over one's land, came into clear tension with environmental and socioeconomic regulations. 

 

Measure 37 did not last forever. Environmentalists, farmers, and many Democrats banded together to respond with Measure 49, which prevented commercial and industrial development outside the urban growth boundary, but was not as strict on all development as the policy had been prior to 37 (508). This more moderate growth management policy reflects the division of property rights theories within the American context, but also the potential for compromise and community engagement. I argue that this debate in Portland could benefit from an incorporation of Varner’s argument, namely, that we must reconceive property management and regulation in terms of public rights rather than individual harms (1994, 157). Measure 37 reflected a narrow focus on individual harms, as property owners felt personally victimized by the prevention of increasing development and productivity on their land. Rather we could frame the issue of the public’s right to non-segregation, to close proximity to undeveloped land, and to environmental health . 

 

“Right to place” is nuanced and complicated in Portland, as it is everywhere, but Portlanders should be applauded for engaging in a conversation regarding property rights and environmental regulation and experimenting with growth management policies. Questions of property rights and “right to place” involve the question of justice. How do we balance the needs of all the stakeholders? How do we incorporate the centuries of indigenous land dispossession and wealth inequality along racial lines into just growth management policies and environmental regulations? It may be unrealistic to imagine the doing away of private property, but perhaps the eclipsing of private property as it is currently regarded is nearing. The eclipsing, however, must incorporate the frameworks and needs of indigenous and marginalized communities, as to ensure they are not harmed further by the ongoing evolution of property rights in America.