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Property Rights Can Help Address Environmental Justice Concerns

  • Jonathan Wood
  • South Florida, like many coastal communities, faces tough decisions about how to adapt to changing coastlines and rising seas. According to the Miami Herald, elected officials in Miami Beach and the Keys have been threatened with lawsuits over their decisions about which properties and communities to protect and which to sacrifice, raising debates about property rights and environmental justice.

    For instance, one Miami Beach homeowner has complained that the city raising one of its streets (to protect the street from floods) is causing increased flooding on his property.

    “Why should I go through all this effort to do this when I haven’t had this problem for the last 40 years until you changed the road?” he said. “If what they’re doing doesn’t fix it and my property gets flooded of course I’m going to sue.”

    How this implicates property rights is obvious. The Constitution guarantees just compensation to property owners whenever property is “taken” by government for public use. When the government contributes to flooding private property to protect government property (or other private property), it must pay for it. Likewise, compensation is required when government forbids people from protecting their property by denying required permits, even though the government is not required to insure property against natural risks. Both of these property rights principles are implicated when governments decide how to adapt to climate change and which adaptations to allow property owners to undertake on their own.

    But how does this implicate environmental justice (concern about the distribution of environmental harms on disadvantaged communities, like the poor and minority groups)? Most environmental justice debates concern the siting of facilities that impose environmental impacts on neighboring communities, such as landfills, water treatment plants, and smokestacks. Poor and minority households are significantly more likely to live near such facilities, imposing a disproportionate environmental burden on them.

    There are two explanations for such impacts. First, polluting facilities and impoverished communities may both be attracted to areas where property values are lower, making the correlation all but inevitable. As H. Spencer Banzhaf explained in a 2009 PERC Reports:

    If pollution lowers land prices, and if poorer households systematically locate in lower-priced communities, any policy designed to break the correlation by targeting firms’ behavior eventually will be reversed by households’ behavior. As long as pollution crops up somewhere, the cycle is likely to repeat itself: land values will fall, the rich will move out, and the poor will move in.

    The second explanation is politics. Most significant sources of pollution require government approval at some level, whether it’s a local zoning board or a permit from the federal Environmental Protection Agency. Unsurprisingly, choices made by political institutions tend to favor those with political influence (the rich and well-connected) and give short-shrift to those who lack such influence (the poor).

    Both are relevant in climate adaptation debates. As climate risks are better understood, they are reflected in property values, raising concerns that reduced prices will attract communities to areas likely to be adversely affected in the future. And because many of the adaptation measures will be carried out by government or be subject to government approval, there’s a risk that such decisions will favor the politically powerful at the expense of the politically weak.

    Compensation for affected property owners can help address both problems. When governments pursue buyouts (purchasing flood-prone properties to convert them to green infrastructure), vulnerable communities can be moved out of harms way. In Baton Rouge, for instance, the community of Pecan Acres negotiated a buyout that moved residents to higher ground and converted their properties to wetlands, which was cheaper than raising the levee to protect those properties from flooding. One critic of buyouts has suggested that buyouts of vulnerable communities is itself an environmental justice problem, but any such concern can be addressed by requiring consent from bought-out property owners.

    Enforcing the compensation requirement will also help vulnerable communities by forcing government to internalize the costs imposed on politically disfavored property owners. Indeed, this seems to be how the market is addressing environmental justice in the private arena. Some facilities, including landfills, compensate neighboring property owners and communities to offset any environmental impacts. Why shouldn’t the government be similarly accountable to the communities on which it imposes environmental harms?

    So long as government decides what climate adaptations can be undertaken and where they can occur, there will be significant risk that such decisions will favor the politically connected at the expense of the politically weak. Thus, constitutional protections for property rights, if enforced properly, can protect vulnerable communities and advance environmental justice.

    Written By
    • Jonathan Wood
      • Vice President of Law & Policy

      Jonathan Wood is vice president of law and policy at PERC, leading PERC’s Conservation Law and Policy Center.

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