Allocating Property Interests in Ecosystem Services : From Chaos to Flowing Rivers

In the past two decades there has been a surge in legal scholarship on ecosystem services, more recently with an eye toward developing methods for economically valuing them. Ecosystem services supply us with clean air and water, protect us from floods, allow us to grow food, and so much more, so naturally they have great economic value. That value may be understood in terms of the benefits themselves (i.e. what they are worth to us) or in terms of replacement cost (such as the cost of building and operating a water treatment plant – a cost avoided in New York by restoring the Catskills watershed), but no matter how we value them, it has become increasingly clear that they have economic value. While these concepts have been navigated somewhat already, there has been very little discussion regarding how this newly identified economic value impacts property rights. If ecosystem services can be identified as a thing of value, who owns that thing? What is the impact of altering that thing in such a manner that those who previously benefitted from it no longer do? Can it be protected via traditional property principles? This article will first explore these overarching theoretical questions by looking at the role ecosystem services might play (and in some cases has played) in several property law contexts: eminent domain, exactions, regulatory takings, nuisance, markets, and the public trust. What we see is that ecosystem services are definable as property, and that they may be protected as a property right. This inquiry also unearths a surprising and important problem: this property right has been placed in different hands in different contexts, resulting in a serious failure of security in these interests. For this reason, it is important that we allocate these rights in a consistent and reliable manner. This should be accomplished with an eye toward maximizing their social value