"One man's ceilin' is another man's floor": property rights as the double-edged sword.

I. INTRODUCTION

Scientists view the world as a vast interconnected web. (1) School children know Commoner's Four Laws of Ecology by heart:

(1) Everything is connected to everything else.

(2) Everything must go somewhere.

(3) Nature knows best.

(4) There is no such thing as a free lunch. (2)

Great river systems, the ocean tides, arctic air masses, and subterranean aquifers care nothing for political boundaries and property lines crafted by the legal systems of the planet. Green Theorists argue that this indifference is the Economy of Nature. (3) Viewed from a jetliner or mountain ridge, the forces of nature are readily apparent even to the casual observer. The Anglo-American legal system embodies this view in concepts such as the public trust doctrine and riparian rights. (4) The Wisconsin Supreme Court decision in Just v. Marinette County (5) is often cited as a watershed judicial validation of the view that the state may legally require nature to be left undisturbed, if harm to public trust property can thereby be avoided, without compensating the landowner under the United States Constitution's Fifth Amendment Takings Clause. (6) Professor Joseph Sax and others also believe that Just v. Marinette County was the target of Justice Scalia (7) in the line of cases that includes Lucas v. South Carolina Coastal Council. (8)

Anglo-American property law, on the other hand, views the world as a grid comprised of political boundaries and the property lines of individual owners. (9) Property is part of a human system to transform nature into something else (the Transformative Economy), thereby generating greater economic value. (10)

The clash of interests presented by these divergent views has confounded theorists such as Boalt Hall's Joseph Sax, who calls the challenge of reconciling the Transformative Economy with the Economy of Nature "one of the most important problems of our day." (11) Sax is direct:

   Viewing land through the lens of nature's economy reduces the significance
   of property lines. Thus a wetland would be an adjunct of a river, in
   service to the river as a natural resource. Beach dune land would be the
   frontal region of a coastal ecosystem extending far beyond the beach
   itself. A forest would be a habitat for birds and wildlife, rather than
   simply a discrete tract of land containing the commodity of timber. Under
   such a view the landowner cannot justify development by simply
   internalizing the effect of such development on other properties. Rather,
   the landowner's desire to do anything at all creates a problem, because any
   development affects the delicate ecosystem which the untouched land
   supports. In an Economy of Nature the landowner's role is perforce
   custodial at the outset, before the owner ever transforms the land.
   Moreover, the object of the custody generally extends beyond the owner's
   legally defined dominion. The notion that land is solely the owner's
   property, to develop as the owner pleases, is unacceptable. (12)

Sax offers a variation of the usufructary rights found in the public trust subset as a model, but concedes that it is difficult to conceive of a method harmonizing the natural economy with the Transformative Economy without doing "great violence" to the system of property lines. (13)

The purpose of this Article is to examine the debate and suggest that the most direct method to regulate transboundary migration of materials that can damage persons or other property, public or private, is to 1) contain all materials within property boundaries, and 2) limit the ability of the owner to modify or consume resources that move on, over, or under the property (primarily air and waters), so that when the resources move on they are relatively undisturbed. (14) Thus, property lines can be used to do some of what Professor Sax seeks: to contain externalities (using a broad definition of the term to capture any offsite effect, including any effects on resources that move off the property), and to identify and regulate more precisely any alteration and consumption of transitory resources. (15) The line is distinct and characterized by property boundaries rather than an inquiry into the reasonableness of any given individual conduct. This device, coupled with concepts such as the Public Trust and riparian rights, might provide a more accurate methodology to analyze the rights and responsibilities of all. The device is closely related to Public Trust in that protection of the resources of the Common is a principle goal (as property right common to all property), and it could be accomplished by preventing pollution at the source property, thereby protecting the resources and offsite property of commons (for example, wetlands) and by protecting the public's interest in the transitory resources. Several lines of cases are evolving that would support this view, based on the rights of the receptors as well as the rights (and responsibilities) of owners of generator properties. (16)

The Property Rights Movement in the United States, often led by trade groups, (17) has arisen to champion the right of each owner to the "highest and best use" of his or her property in the economic sense, transforming the property into something more valuable than its natural state (again, the Transformative Economy). (18) Drawing upon Locke, property rights activists equate unfettered ownership of property with liberty. (19) In response to cases encouraged by the movement, the current Supreme Court has, in a dozen years, underscored the sanctity of private property lines and the rights of owners to some economic use. (20) Resurrecting cases from the Substantive Due Process Era thought to be extinct after the New Deal, (21) the current Court majority has shifted to the government the burden of justifying regulation in the real property and land use subsets of economic regulation and raised "takings jurisprudence" to the fore in the deliberations of legislative and regulatory bodies. (22) However, Justice Scalia exempted from his "total regulatory takings" analysis historic state law property and nuisance doctrines. (23)

Converging with the Lucas line of cases in the property law subset are those that have begun to expand the constitutional dimension to the rights of receptors to be free of conditions generated on other properties. In the 1990s, agriculture adopted methods of raising livestock, such as hogs, through concentrated animal feedlots (CAFs) that radically magnified the amount of animals, manure, odor, and water quality issues relating to farmland. (24) The Iowa Supreme Court, in Bormann v. Board of Supervisors, (25) addressed the phenomenon and invalidated the state's Right-to-Farm Act, (26) which provided agricultural operations with statutory immunity from nuisance actions by neighbors. (27) The court said that a nuisance imposed on other properties effectively subjected the receptor properties to an easement. (28) Because that easement was created by state action through the permitting process, the court reasoned that the imposition of the easement would effectively take the receptor's property without compensation. (29) The court concluded that the statutory immunity provision was therefore unconstitutional and the current United States Supreme Court declined to review that decision. (30)

Another converging line of real property cases has begun to upgrade nuisance and trespass law to modern scientific realities. In cases such as Martin v. Reynolds Metals Co., (31) Borland v. Sanders Lead Co., (32) and Bradley v. American Smelting & Refining Co., (33) the Oregon, Alabama, and Washington Supreme Courts, respectively, found a trespass where chemicals invisible to the eye invaded the airspace and land of the receptor property. (34) This analysis dashed the aged "dimensional test," which since the Industrial Revolution had effectively meant "out of sight, out of mind" by denying the right if the trespass was not visible. (35) Given current scientific knowledge about transboundary migration of materials (even odors), energy, sound, and light, the Alabama court asked rhetorically whether there could be any nuisance that was not also a trespass. (36)

The notion of real property is of course a three-dimensional construct, composed of surface rights, subsurface rights, and airspace. By definition, the property adjacent to any side of the solid geometric figure--which is any given private property--is either private or public property. (37) As Paul Simon put it: "One Man's Ceilin' Is Another Man's Floor." (38) Transboundary migration of materials from generator property into and onto other property is a classic, concrete example of a phenomenon economists call "externalities" (or "spillover"). (39) The costs of containing or disposing of whatever material, usually waste, involved is shifted to others (receptors) and not borne by the generator of the substance or condition. (40) The generator saves disposal and containment costs, and the receptors pay in crop loss, health effects, cleanup costs, and diminished quality of life and property values. In cases such as Love Canal and Times Beach, Missouri, those impacts included closure of entire towns because approved chemicals were discovered in the soil and groundwater beneath the receptors' properties, which had been in the market for decades. (41) As Rose notes, "Landowners [are] accustomed to regarding their land as their property, but they simultaneously regard the adjacent air, water, and wildlife as goods that are free for the taking." (42)

The tobacco cases (particularly those involving secondary smoke) (43) and litigation involving PCB, (44) dioxin, (45) Agent Orange, and underground storage tanks (USTs) (46) have highlighted the staggering costs--both to the individual and to the taxpayer--of ignoring the externalities. At the national level, the Environmental Protection Agency (EPA) and several northeastern states are seemingly revisiting the Civil War over nitrous (N[O.sub.x]) emissions from the Southeast. EPA and the northeastern states contend those emissions--largely from coal-fired utilities and motor vehicles--travel north and make it impossible for the northeastern states to meet national ambient air quality standards (NAAQS) (47) for N[O.sub.x]. (48) EPA's N[O.sub.x] state implementation plan (SIP) call has already generated litigation (49) and may result in significant changes in power generation in the Southeast. On a global level, the United States and Canada have already had several border wars over drifting acid rain. (50)

For decades, green economists and thinkers have argued that the Transformative Economy does not adequately internalize the costs attendant to economic activity on a given property, as classical economics would demand. Those economists say that direct effects of pollution, such as cleanup, property (crop and structure) damage, and health costs, as well as indirect effects, such as traffic generated by a new shopping center and its resultant air pollution, are inadequately accounted for in the permitting and regulatory processes. (51) In fact, the permitting process itself, central to so much of the regulatory realm, is effectively a subsidy granted by government to allow offsite disposal of waste--by definition, on another's property--without complete internalization of the costs. (52) As difficult as it may be to quantify these categories of damage, it is more difficult still to measure in dollars phenomena such as the loss of forestland, fishable and swimmable rivers, and quality of life issues associated with industrialization and urbanization. (53) To compound the problem, the damages are poorly adjusted by a judicial system with huge transactional costs.

But if there is little theoretical question that even classical economics favors internalization, there is contentious debate about how to internalize those costs constitutionally and most efficiently--through specialized legislation, through rules of property or rules of liability, or through some other system. (54) The battle touches the philosophical roots of the western notion of property and pits political extremes--ranging from those who argue that unfettered private property is the essence of liberty to those who argue that we are morally bound to leave nature untouched. (55) To use Cardozo's analogy, is the right to develop to the "highest and best use"--a green stick in the bundle of rights of externalities generators, with a red stick in each bundle of receptor's rights, requiring the acceptance of externalities from generators to a maximum--dictated by common law or statute? (56) Or is the right to be free of externalities the green stick in the rights of receptor properties, with a red stick in each owner's bundle that forbids transboundary pollution, however that term is defined? (57)

The law has responded to the question of costs imposed on receptors with both common law remedies and statutory schemes that critics have called incomprehensible and disjointed. (58) Trespass and nuisance are the historic common law torts available to other landowners, joined, since the Industrial Revolution, by strict liability for ultrahazardous activities. (59) The problems with the common law approach are classic: 1) the property owner may not be aware of the problem for decades (for example, acid rain, dioxin, asbestos, DDT, PCBs); 2) scientific knowledge is often lacking, usually because research is neither required of producers nor affordable by EPA or universities; 3) expensive testing and monitoring may be necessary to gather evidence; 4) the horse is almost always already out of the barn; 5) the entire burden of the proceeding falls upon receptors who, even if sophisticated, may lack the substantial resources to take on the polluter; (60) 6) the individual action is not an efficient method to plan and implement a comprehensive management plan; (61) and 7) the remedies almost always depend on the subjective judgment--what is, for example, "reasonable"--by jurists who are neither directly affected by the proposed resource use (62) nor schooled in complicated environmental issues.

The utility of the common law concepts, however, was recently underscored by a comment in Lucas. Justice Scalia, writing for the majority, opined that governmental action proscribing conduct that would otherwise be considered, under traditional common law concepts, a nuisance or trespass, could not constitute an unconstitutional taking even under its expanded "total regulatory takings" analysis. (63) The Court again acknowledged in Lucas that the definition of property is primarily an issue of state law. (64) Theoretically, therefore, any judge in any state interpreting the law of that state could prohibit all economic activity on private property because the result is a trespass or a nuisance, according to how that court defines the law of property, trespass, and nuisance.

The first statutory systems to enter widespread service consisted mainly of "Euclidean" or grid zoning ordinances. (65) The land use ordinances were immediately attacked as unconstitutional "takings" in cases such as Village of Euclid v. Ambler Realty Co. (66) However, for decades courts have upheld regulations as part of the wide discretion accorded to regulatory bodies in the economic sphere as long as the regulations serve a valid public purpose, were within the authority of the agency, and the means were rationally related to the ends. (67) The 1899 River and Harbors Act, (68) which was designed to protect the integrity of the waterway transportation system, had potential to abate water pollution, but was largely ignored for this purpose even by the agency charged with its implementation until the 1960s. (69) Since the 1960s, a plethora of statutes ranging from the National Environmental Policy Act (NEPA) (70) to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), (71) Resource Conservation and Recovery Act (RCRA), (72) and the Endangered Species Act (ESA), (73) have been crafted by Congress in an effort to balance the health of humans and the planet with property rights of generators. (74) The resulting labyrinth has created entire careers for lawyers, accountants, and environmental consultants, but has satisfied no one in particular. Current statutory systems simply permit pollution and leave enforcement of the common law rights largely to individuals. The statutory systems are instead keyed to cost-benefit analysis and its progeny, risk assessment, (75) rather than the actual protection of property rights, or personal constitutional rights of the receptors. Statutory systems are subject to criticism from nearly all sectors for some of the same reasons: 1) scientific knowledge is limited, mainly by resources; (76) 2) standards are inextact partly as a result of the dearth of research; (77) 3) the balance between health-based standards and risk-based analyses is always shifting; (78) 4) standards are also subjective in the sense that any standard that is not "unreasonable" and is supported by substantial evidence will likely pass judicial muster; 5) the systems are fundamentally flawed in that they permit discharge and, therefore, by definition do not internalize costs; (79) and 6) the agencies that administer the systems are subject to the "capture" phenomenon by regulated industries and "rent-seeking" by bureaucrats intent on preserving their jobs. (80)

This Article reviews the debate and suggests a simple model for use in the discussion. The model, which for purposes of discussion can be nicknamed "Cubism," enhances the concept of property lines to a three-dimensional geometric form bounded by property lines (the cube). Effects generated on the property or received by the property can thereby be more accurately gauged using the most modern techniques of global imaging systems (GIS), global positioning systems (GPS), ground penetrating radar (GPR), and a whole host of new quantitative measures, including remote sensing and more sophisticated modeling. (81) By drawing upon the Bormann, Martin, and Borland line of cases--and guided through the loophole for state law property concepts left open by the Supreme Court in the Lucas line (82)--and by using historic definitions of the term reinvigorated by modern quantitative and qualitative methods, any material transgressing the boundaries of a property would be considered a trespass into other property owned either by private owners or the public. The costs of the trespass would have to be accounted for and paid so that those costs are fully internalized. The de minimis defense created by the Martin court (83) could either be strictly construed to place the scientific and accounting burden on the generator, or could be replaced by a more appropriate defense such as the classical defense of "necessity."

This model provides a bright-line test designed to capture conceptually all externalities and to ensure that the costs for any externalities are imposed on the generator, consistent with classical economics. Instead of de-emphasizing property lines, (84) the theory utilizes property lines to impose responsibility on generator properties for all effects on receptors' properties. The burden would then be on the generator to establish satisfactory payment of all costs by any creative means, including trading and banking concepts. (85)

The purpose of this model is to demonstrate that there is ample philosophical and legal basis for a conceptual union of the property lines of the Transformative Economy and the basic scientific principles of the Economy of Nature. In fact, the entire notion is based on a modest extension of the law of trespass as it has been refined and applied in cases like Borland and Martin. This result could actually be implemented by any legislative body, however unlikely that may actually be, since there seems to be no right to pollute and proscribing trespasses appears to be within the realm of the legislatures even after Lucas. Because the concept really arises from common law analysis, it is also possible that any state supreme court could adopt cubist concepts. This author offers this more as a philosophical vehicle to analyze how to harmonize the Economy of Nature with the Transformative Economy, rather than as a basis for anything that is likely to be implemented in the near future by either a court or a legislature.

There appears to be a way to begin to reconcile property lines and the Economy of Nature. With the population of the world doubling every forty years as Byrne suggests, unique and unusual solutions are as essential in law as they are in science. (86) In this case, it is simply a matter of connecting familiar concepts in creative ways.

II. PROPERTY RIGHTS AND THE CONFLICT BETWEEN THE ECONOMY OF NATURE AND THE TRANSFORMATIVE ECONOMY

Since the decision of the United States Supreme Court in Lucas, there has literally been an explosion in the literature commenting on the malleable nature of property rights and the transformations that our concepts of property have undergone over the ages following the tradition of the common law. (87) Some writers have hailed the course of the current Supreme Court as providing at least some recognition of the importance of private property, even if the decisions do not go far enough. (88) Others (notably former Justice Blackmun and Justice Stevens) assail the 1990s spin on historic real property and constitutional law by the current majority of justices. (89) Science has evolved while the law has devolved back to the era of the robber barons and social Darwinism. (90) Still others, such as Professor Sax, argue that the Court missed an opportunity to define the responsibilities of a property owner with respect to the Economy of Nature. (91) What emerges from these discussions is that property is like the old joke: A person asks three people for the answer to the question, "What is two plus two?" The child answers, "Four." The accountant answers, "Let me check my calculations, but I'm confident the answer is four." The lawyer, returning question for question, leans over and whispers, "What would you like it to be?"

A. The Nature of the Transformative Economy

Anglo-American property law, which implements the Transformative Economy, has historically had several characteristics: 1) landowners have sought to have extensive, if not complete, discretion over the use of land; 2) land ought to be put to its highest and best use, based on a uniform model rather than site-specific criteria (hence, a wetland is the same as main street); 3) boundary lines are critical; 4) landowners only have responsibility to account for waste discharged from the property in egregious cases of nuisance or trespass; and 5) the line between public and private ownership is clearly drawn. (92) The focus is on the rights of the individual landowner of real property in contrast to the rights of the holder of personal property. (93) The Property Rights Movement contends that private property rights protect all other rights. (94) Ironically, advocates of the Economy of Nature perspective believe that each property owner has the right to be free of waste and the negative effects of others. (95) Locke himself recognized that since the value of property is dependent on the political and legal system that creates and protects it, landowners must expect limitations on the rights of ownership, rights that might be changed by government action, i.e., law making. (96) For example, common law ownership was long considered to extend to the "periphery of the universe." (97) Today, American courts recognize privacy and property rights only to the level the Federal Aviation Administration (FAA) considers the floor altitude for safe and legal flight (about 500 feet). (98)

The notion of unfettered property rights arose in a time when few cases caused significant offsite effects, and those that did went undetected largely because they defied visual analysis--the "dimensional test" from the trespass cases. Today, after the Industrial Revolution produced staggering amounts of wastes that were deposited into waters, the earth, and airsheds, offsite effects are more widespread and widely understood by the public (and make work in the cleanup industry plentiful). Fortunately, quantification of those effects is becoming more precise because of better science.

Legislation such as RCRA, CERCLA, the Coastal Zone Management Act (CZMA), (99) and the ESA galvanized property rights advocates, such as the National Association of Homebuilders and National Association of Realtors, into action as the Property Rights Movement to challenge, in the courts and the legislatures, governmental regulation of property without physical invasion as an unconstitutional "regulatory taking." (100) Litigation is usually a direct attack that claims that the action of the government is unconstitutional, so compensation should be paid for taking even a partial interest in any part of the property. However, given the lack of judicial support even among the current Supreme Court justices for payment for anything less that a total taking, (101) the property rights movement has shifted its focus to legislatures. There are major takings legislation bills pending which would 1) allow segmentation of claims, 2) provide compensation for partial takings (sometimes for as little as twenty percent reduction in value), and 3) ease procedural hurdles to litigation. (102)

The Property Rights Movement, as champion of the Transformative Economy, has been buoyed by the actions of the Supreme Court over the last two decades, which has focused on the "green stick" rights of the generator property owner. (103) Lucas is perhaps the most famous of the recent line of cases that began with First English Evangelical Church v. County of Los Angeles (First English) (104) and continues through cases such as Suitum v. Tahoe Regional Planning Agency (105) and Palazzolo v. Rhode Island. (106) In Lucas, the owner of two beachfront lots was denied the right to develop them to their highest and best use because the South Carolina Coastal Council declared them to be in an "ocean hazard area" following Hurricane Hugo in 1989. (107) The Supreme Court held that the South Carolina Coastal Act (108) eliminated all the economic value of Mr. Lucas's property, entitling him to compensation by the taxpayers of South Carolina under the Fifth Amendment Takings Clause. (109) The Court held that governmental regulation that indirectly destroys all economic value of private property may result in a taking unless the general "background" principles of state property law support the regulation. (110) Commentators have noted that while the "total regulatory taking" requirement is unsurprising, the decision contains unsettling language that tends to shift the burden to the government to justify regulation, in contrast to the historic presumption accorded legislative determinations. (111) Lucas draws on themes announced five years earlier in Nollan v. California Coastal Commission (112) and First English, which may, in land use cases, limit government's substantive policy options if the Court really meant that the relative rights of a landowner are fixed by the relevant background principles of nuisance and property law in effect at the time the property in question was acquired. (113) Lucas drew heavily upon the Substantive Due Process-era case Pennsylvania Coal Co, v. Mahon (114) and is grounded in the "investment-backed expectations" doctrine announced in Penn Central Transportation Co. v. New York City. (115) The burden was also on the government to justify its actions in First English and Nollan. (116) The Court's decision in Dolan v. City of Tigard (117) expanded on this theme. In Dolan, the Court invalidated a dedication of open space because it found insufficient evidence to justify the nexus between the remedy, total dedication of fee title to a strip of open land, and the harms, the effects of traffic, parking, and other planning issues raised by the expansion of Dolan's plumbing supply store. (118) The Court has continued its trend of protecting property owners' rights by deciding that takings cases are entitled to a jury trial, thus increasing the risks to the government in litigation. (119) During the 2001 term, the Court decided Palazzolo, but splintered factions produced a decision that did not reach the deeper issues of the changeable nature of state property law. (120) In Palazzolo, the Court held narrowly that a mere change in ownership (here, from corporate ownership to the major shareholder) would not prevent a subsequent owner from challenging a statute as a "taking" simply because it was in effect during the prior ownership. (121) Significantly, Justice Scalia could not muster four votes in 1994 to reach the issue of whether a shift in state property law is constitutional if it frustrates the owner's investment-backed expectations. (122) The Court has just accepted a Tahoe Regional Planning Agency case on the issue of another temporary regulatory taking. (123) Cases waiting in the wings address issues including the use of mitigation measures, such as transfers of development rights (TDRs) to some other property. (124)

Even so, the Lucas line has not gone far enough to satisfy property rights advocates. The constituent groups of the movement have engaged in litigation and lobbying for legislation at state and federal levels to advance their two outstanding agenda items. The first item is partial takings; even property rights advocates can concede that total takings are relatively rare, so advocates have sought to achieve recompense for government actions that reduce, but do not eliminate value. Second, property rights activists want legal recognition of the idea of "segmentation," a concept that would require compensation when governmental action almost entirely reduces the value of a portion of the target property. (125) In addition, plaintiffs have begun to explore unique avenues to obtain procedural access to courts in takings claims. (126)

Professor Sax notes that, in Lucas, the Supreme Court has fired a "shot across the bow" of overzealous regulators to bolster the Transformative Economy. (127) The Court went to extraordinary lengths to hear and decide Lucas most likely because in its original form it was so similar to Just v. Marionette County. Because the South Carolina legislature amended its Coastal Act during the course of the Lucas litigation, so that obtaining a permit became quite likely for Mr. Lucas, (128) the Supreme Court was also obliged to make new law in a somewhat arcane field, which includes the doctrine of ripeness, just to hear and decide the case. (129) Sax argues that Justice Scalia's intention was to put to rest the theoretical basis for the ruling in Just. (130) In Just, the Wisconsin Supreme Court concluded that a shoreline protection ordinance limiting filling of wetlands was designed to protect the public trust rights in lake waters, not to take development rights of landowners. (131) Sax laments that the United States Supreme Court had an opportunity to rewrite the rules of property to include Economy of Nature concepts, such as the usufruct and public trust, but that the Court chose instead to favor ownership of generating properties over ownership or possession of receptor properties. (132) The Court shifted the burden to the government in land regulation cases, requiring the government to demonstrate 1) that there is a close nexus between the property owner's plans and the exaction sought by government, and 2) that there is some economic use left for any given property. (133) Property rights advocates lamented that a total taking was required and that the Court had shown no interest in segmenting property, with the consequence that a total taking of part of a property is still not compensable. (134)

The Lucas opinion appears to present at least one significant conceptual bind. On the one hand, Justice Scalia and the current majority seem eager to validate states' rights in general. (135) Justice Scalia declares in Lucas that the definition of "property" is properly the province of state substantive law. (136) On the other hand, if the Court really intended to bind property law to the date the property was acquired, that intention invades the historic province of the states to define and redefine property rights. (137) What is so sacrosanct about the definition of property as it existed the moment an owner took title? As legions of commentators and Justice Blackmun have noted, the fabric of the law of land use and property rights has always been changeable, (138) as property owners and their counsel well know. Yet it is that principle of state property law that the Court in Lucas seems to attempt to limit or eliminate.

Such an extraordinary result should not occur without explicit instructions from the Court. As the "billboard" cases illustrate, (139) labeling owner's expectations as "investment backed" does not mean the anticipated use cannot be limited or eliminated. (140) Moreover, Justice Scalia could not muster four votes to reach the "background principles" issue in Stevens v. City of Cannon Beach, (141) and the Court was splintered in Palazzolo this year.

B. The Economy of Nature

The Economy of Nature seeks to adopt science's understanding of the natural world and to implement land use policies accordingly. (142) The Economy of Nature recognizes that connections dominate. The function of any given parcel is determined by ecological systems, not by property lines or political boundaries. Wildlife, water, air, and for that matter, pollution respect neither property rights nor politicians. Land serves the whole community--where single ownership of an ecological service unit is rare--a concept in direct conflict with the cellular view of traditional Anglo-American property rights. Sax, Byrne, and Hunter all argue that the public trust doctrine, traditionally applied to surface water rights, ought to be extended to other public resources. (143)

Sax illustrates his view with a key example from the world of water law called "usufructary rights." Each riparian owner has rights in usufruct, but no landowner has exclusive rights. (144) As Sax explains it:

   The owner of a usufruct does not have exclusive dominion of her land;
   rather, she only has a right to use uses compatible with the community's
   dependence on the property as a resource. Thus, for example, one may own
   private property rights in a navigable river to use the water, but those
   rights are subordinate to the community's transportation needs in the
   river. The private use may be entirely eliminated where the community's
   navigation needs so require. Usufructory rights have already developed in
   water because rivers and lakes were viewed as continuous and
   interconnected, not as separable into discrete segments. Many people
   depended on the rivers and lakes while numerous individuals also helped
   private property interests and the resources. These characteristics made
   water unsuitable for complete privatization. (145)

Sax would like to see this principle of usufruct extended to other elements of the environment, whether airsheds, species, or subsurface waters. (146)

In contrast to Sax's view, the short term economic strategy of most generators is to externalize costs whenever possible, using the classic "free goods" of air and water as low or zero cost dumping grounds, and ignoring or concealing these externalized costs. (147) Sax is blunt regarding the imposition of the Transformative Economy by the colonists and settlers on the Native Americans: "Thus the Transformative Economy was built on the eradication of the Economy of Nature." (148) To accomplish this, "the very heart of the Lucas opinion--the concept that property ownership confers positive development rights--is a product of a modern economy that itself destroyed common law rights in property because such rights were no longer functional in a capitalist society." (149)

As Aldo Leopold observed, "There is as yet no ethic dealing with man's relation to land and to the animals and plants which go upon it.... [T]he land-relation is still strictly economic entailing privileges but not obligations." (150) The critique is not literally accurate since the common law concepts of nuisance and trespass evolved to buffer the externalities, and the regulatory system that was developed after the late 1960s was designed to address the health impacts and other impacts of pollution. Nonetheless, there is little debate that the system does not completely contain externalities, whether because they are not identified, or because the transactional costs for receptors to do so are so great. The Clean Air Act (151) and the Clean Water Act (152) permit pollution in regulated amounts, for example, without accurately accounting for externalities.

From the perspective of the social scientist, the disparity between science, law, and policy is the result of these short-term economic tenets. Authors such as Huffman have concluded that every environmental problem is to some extent the result of a market failure to internalize costs. (153) Green theorists such as Hunter agree with the Supreme Court that real property is fundamentally different from personal property. (154)

Hunter notes three factors in the current definition of property that are deserving of critique. (155) First, the legal and economic concepts espoused by the current Supreme Court are no more legitimate or fixed than were those embraced by earlier Courts, including those found in Plessy v. Ferguson, (156) Lochner v. New York, (157) or Miranda v. Arizona, (158) which the Court elected to review in 2001 after thirty-four years. (159) The current system of common law and statutory law focuses on the economics of the generator, not on the economics of the whole equation, including the externalities imposed on private and public receptors. (160) Calculating direct costs to generators is much easier than calculating externalities that might result from public health costs, nuisance, or products liability suits twenty years in the future. At the beginning of the twentieth century, economic texts described the air as a "free good," in stark contrast to the Economy of Nature or, for that matter, modern economic theory that takes into account scientific understanding of the effects of air pollution on humans, crops, and even buildings. (161) The difficulty in quantifying externalities in the environmental and health realms finally is being addressed by a new generation of environmental economists, but it must be conceded that the value of a sunset or a grove still will not be easily quantified with precision in monetary terms. However, the tobacco cases (162) and the proliferation of CERCLA litigation for soil and groundwater contamination both have driven home the ultimate expenses of ignoring externalities. (163) It was principally the externalities of medical costs imposed on insurers and state governments because of tobacco-related illness that led states and the federal government to seek recovery from the manufacturers through massive lawsuits and through legislation--even as the federal government continued the process of subsidizing growers. (164) A great number of CERCLA cases have resulted from shockingly simple failures to capture externalities due to allowing ground disposal of hazardous waste and the unwillingness to recognize that metal underground storage tanks would eventually rust out, spilling contaminants into groundwater. (165) To date, the costs are in the trillions, with trillions more to follow. (166) Even the actuaries missed the risk until the first few cases in the 1980s imposed liability for cleanup on insurers under the comprehensive general liability language of only fifteen years ago. (167)

Second, classical economics has also had difficulties quantifying the value of the environment. "Most environmental amenities cannot be adequately monetized, not because they are not valuable, but because they are not supplied through a market." (168)

Closely related is the third concept that western economics tends to be short-term, rather than long-term as in other cultures. (169) Accordingly, short-term profit--profit realized within five to ten years--is preferred over long-term utility, value of real property, and health of flora and fauna. The truth is that while economic theory demands internalization, pragmatic business people, with this year's bonus on the line, opt for imposing externalities in the hope that such externalities either will never become long-term costs or that they can be resolved through favorable negotiation of claims, as done by the tobacco companies. (170)

The legal system has embraced the Economy of Nature only to a limited extent. Protection of receptors' rights, both public and private, particularly in areas arising from the common law protection of public trust has been a central theme of writers such as Green, Freyfogle, Byrne, Hunter, and Sax. (171) It is the extension of the concept in Just that may have caused the current majority of the Court to seize a vehicle in Lucas to stem any rising tide in any lower or state court that would allow regulators to require property to remain in its natural undeveloped state if harm to others could occur, without compensation to the landowner.

As noted earlier, Sax and others would like to see the basic principle of the commons extended to other areas of the environment, whether the airshed, species, or subsurface waters, so that the costs of altering these resources could better be tracked and internalized. (172) One significant problem is that neither the legal system nor science are yet well-equipped to capture the environmental effects so that a determination of environmental costs can be made. A major reason is that new chemistry has entered the marketplace under the Toxic Substances Control Act, (173) although complete data is lacking mainly because the EPA budget does not allow adequate testing and Congress does not require it of manufacturers. (174)

C. Suggested Methods to Harmonize the Views

Solutions offered by commentators fall into three basic categories: ethics of policy, the decision maker, and the formulae for decisions.

1. The Ethics of Policy

Writers, such as Goldstein and Frazier, contend that environmental ethics must underpin policy. (175) The first difficulty is reaching agreement on the ethics, which is often more elusive than agreement on specific laws. The second difficulty is translating lofty, but fuzzy, principles into actual policy. The devil is in the details.

2. The Decision Maker

Potential decision makers are found within all branches of government as well as the free market system. Property rights advocates, such as Butler, and commentators, such as Frazier, favor the courts as arbiters of the rights of owners, versus those of non-owners, on the theory that courts may be less political than legislatures or the executive office. (176) Others question both the accountability of judges and the ability of most judges to review complicated environmental cases. (177) The need for an actual case or controversy and the expense and difficulty of the litigation are other reasons to question the efficacy of litigation to resolve these disputes, especially since the standard often given judges is to determine what is "reasonable," a task New York's highest court found better suited to the legislature in the landmark case of Boomer v. Atlantic Cement Co. The legislative branch, of course, has little time to deal with more than statutory structure and budgets and must delegate details to agencies. Legislatures have not hesitated to micromanage when appropriate--for example, the Pennsylvania Right to Farm Act (178) and the specification of overlapping procedures in the Clean Air Act that caught the Court's attention in Whitman v. American Trucking Ass'n, Inc. (179)--but the question is whether the generally part-time legislatures are suited to management of the environment. Still, most commentators seem skeptical of the ability of agency bureaucrats to make ultimate policy decisions because bureaucrats are subject to "capture" by regulated industries (or interest groups), or "rent seeking" as a way to justify their positions, (180) and they deal with less than model environmental enforcement systems with few resources assigned to the enforcement function. No clear winner in the debate emerges.

3. The Formulae for Decision

How should society internalize costs most efficiently? Frazier, Sax, and Hunter all offer formulae to integrate the Economy of Nature into the background legal principals underpinning the Transformative Economy. (181) The problem is that, like the Lucas test for takings, all the formulae are so subjective that they would be difficult to implement. Justice O'Connor, for example, notes candidly in her concurring opinion in Palazzolo, that "[t]he concepts of fairness and justice that underlie the Takings Clause, of course, are less than fully determinate." (182) Sax suggests 1) less focus on individual dominion and the abandonment of the traditional island and "castle and moat" images of ownership, 2) more public decisions, because use would be determined "ecosystematically," 3) increased ecological planning, because different kinds of land have different kinds of roles, and 4) affirmative obligations by owners to protect natural services by acting as custodians as well as self-beneficial entrepreneurs. (183) Sax concedes that the ecological model "reduces the significance of property lines." (184)

Byrne suggests the following sample general permit requirements:

1) any change in the character of land that impairs its natural value will require a permit;

2) no permit will be granted unless the development served a compelling human need;

3) if the development appears to cause some specific harm to the environment not directly forbidden by positive regulations (such as narrowing the habitat of a diminishing species) it can be permitted only if a) it will be accomplished with a minimum of environmental damage b) the developer will pay in dollars the cost of environmental damage and c) the human gains from development substantially exceed the environmental harm from the project;

4) reasonable public access must be permitted over any land designated as having scientific, esthetic or recreational value;

5) no compensation shall be paid to land owners for any regulations or denial of permits under the above regulations if such actions are taken in good faith. (185)

Frazier suggests a whole panoply of ethical and pragmatic considerations that ought to bring ecological concerns into the legal arena. (186) The key question is who will implement the policies. Even under close constitutional scrutiny, there is a wide playing field that allows substantial discretion to lawmakers that is limited primarily by the constitutional question as to whether the regulation is arbitrary and unreasonable in the view of the current occupants of the chairs of the Supreme Court. The purpose of this Article is to suggest that there is a framework and a property law paradigm that could incorporate many of the tests posited by Sax and Byrne into a system that essentially forbids transboundary passage of negative externalities without a full accounting and compensation when the receptors consent to compensation.

D. Common Assumptions

Before turning to the central theme of this Article and its underpinnings, there are four issues upon which most agree existing law and policy should be changed to recognize.

1) Ecosystems respect neither private property nor political boundaries, but instead follow the laws of nature unless and until interrupted by man.

2) Basic science and social science research needed to gauge the effects of externalization is underfunded. EPA is so understaffed, underfunded, and far behind on testing new and existing chemicals and pesticides that Environmental Defense and Chemical Manufacturers Association announced in February 2000 that together they will test some three thousand of the chemicals they think may be most likely to be hazardous. (187) In general, American universities are prepared to conduct the research, but Congress has been unwilling to fund the basic research. (188) Moreover, the law for production of new chemicals places the burden on EPA to demonstrate that there is some unreasonable risk before detailed test results are released. (189) Many of the classic cases of good product gone bad might have been prevented by more extensive front-end testing, such as that required by law for foods, drugs, and cosmetics. (190) For example, lead, asbestos, dioxins, DDT, PCBs, and Agent Orange entered the marketplace before the harm was fully grasped. (191) Critics argue that some ninety percent of new chemical substances enter the marketplace without rigorous health-based testing, and there is not even basic toxicity data publicly available for some seventy-five percent of the top volume chemicals produced in the United States. (192) Insurance companies ought to be leading the charge for funding so that risks may be better quantified for actuarial purposes. On the other hand, even insurance companies have to be cautious about claims unleashed by new research on chemicals that are already in the marketplace and in the environment.

3) Market theory demands internalization of costs for markets to properly function over time.

   The efficiency theory assumes that market participants bear the full costs
   of their activities. When those costs are "externalized" to third parties,
   there is a market failure in the sense that one of the assumed conditions
   of an efficient market is missing. In such cases, regulations may be
   designed to internalize the full cost to the decision maker. (193)

The assumption that market failure is the source of many environmental problems is accurate to an extent. It is certainly true, for example, that many forms of pollution constitute external costs that are not easily internalized given the existing distribution and definition of property rights. This pollution will sometimes have direct health effects on third parties, and will often have indirect effects for wildlife and ecosystems. In these circumstances, regulatory efforts to internalize the direct and indirect costs may be the best solution in terms of efficiency. (194)

Huffman concludes that the market is a more efficient means to internalize costs (195) and suggests that individual actions for nuisance and trespass brought within a judicial forum are the best means. (196) It is,the question of how best to internalize costs that causes the controversy.

4) The regulatory system satisfies no one. Criticism of the statutory schemes is equally barbed from all sides of the environmental picture. Critics fault the "command and control" models of the 1960s and 1970s as static and economically inefficient, but most concede that the systems arose when uncontrolled pollution constituted a major threat and that some have been quite effective, like the regulation of mobile air emissions sources and point sources of water pollution. (197) Resources for the Future, a non-profit think tank, issued a recent report that concluded:

   [The regulatory systems'] greatest strength is its proven ability to reduce
   conventional pollutants generated by large point sources such as power
   plants and factories. It is a system that was developed to deal with the
   problems of the 1960s and 1970s, and it did a reasonably good job of
   addressing them.

   Despite these and other accomplishments, we conclude that the pollution
   control regulatory system has deep and fundamental flaws. There is a
   massive dearth of scientific knowledge and data. The system's priorities
   are wrong, it is ineffective in dealing with many current problems, and it
   is inefficient and excessively intrusive. Most of the participants in the
   system are aware of these problems.

   There is no consensus about how to remedy these flaws. Not only do[es]
   disagreement exist among the different interests concerned with pollution
   control, but even groups that seemingly have a common interest disagree
   with each other. There is no agreement among large corporations about
   decentralizing pollution control or about preserving the current
   regulations. There is no agreement among environmental groups about the
   utility of market mechanisms. (198)

Critics on all sides both 1) lament the complexity of the more than one hundred federal environmental laws ("environmental jurisdiction" and "legal pollution" are two polite terms that refer to the morass) and 2) deride the resulting state, federal, and local bureaucracies as both being "captured" by the industries they regulate and "rent-seeking" in the sense that the bureaucracy tends to perpetuate itself. (199) All sides complain that politics, rather than knowledge and reasoned decision making, pervades the system, such as former Vice President Quayle's Council on Competitiveness. (200) The Bush administration wasted no time reversing rules on arsenic in drinking water (201) and repudiated the Kyoto Protocol, (202) for example.

Environmental organizations are also critical of the effectiveness of the complex systems.

Lofty policy language aside, the Clean Water Act, the Clean Air Act, and even RCRA license pollution. For example, the Clean Water Act declares that "[i]t is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985," (203) but in reality, permitted and unpermitted discharge to surface waters continues both from point and nonpoint sources. (204) On a given body of water, either existing polluters get priority to the exclusion of new polluters, or everyone else has to ratchet down according to some formula, which is always a delicate political process. (205) Green critics argue proof of the inadequacy of the system is 1) an almost complete failure to address nonpoint sources until very recently, (206) 2) fifty-four percent of the nation's wetlands have already been lost, (207) 3) at least one-third of the nation's waters do not meet the "fishable/swimmable" test, ranging from Santa Monica Bay to the oyster rich creeks of North Carolina, (208) and 4) water quality data is available for only about one-third of the nation's rivers, half of the lake acreage and three-quarters of estuarine waters. (209)

Most searching is an across-the-board recognition that the nation simply does not know the effects of the alterations that man has made to the environment. Air (210) and water (211) quality standards and the concomitant emissions and discharge standards all involved a calculus of what humans and the environment can tolerate and the costs to generators and society. The lack of knowledge is so acute that EPA routinely uses models in an attempt to grapple with the effects of new chemicals, (212) because "[l]imited test data are submitted or otherwise available on new chemical substances." (213) Because so little is known, the Center for Disease Control recently implemented The National Report on Human Exposure to Environmental Chemicals, "an ongoing assessment of the U.S. population's exposure to environmental chemicals using biomonitoring." (214) The Clean Air Act originally emphasized health-based standards without regard to costs. (215) Through the Clean Air Act Amendments of 1990, however, cost to the generator has entered into the equation in many of the new standards. (216) Cost to the generator has always been the central consideration under the Clean Water Act. While water quality standards reflected health concerns, the discharge limitations imposed on individual polluters through the national pollutant discharge elimination system (NPDES) permit system require only various formulations of "best available technology," (217) or "best management practices." (218)

The calculus must be determined by data. Critics on all sides of the equation lament the lack of research, with each side suspecting that either costs or benefits are being overlooked. For example, Resources for the Future notes that:

   All questions of comparative risk are plagued by the inadequacy of
   information about the nature and severity of environmental problems. There
   is not enough toxicity data on most chemical[s] to know whether they cause
   adverse effects. There are not enough monitoring data to know to which
   pollutants people are exposed. We do not understand many fundamental
   aspects of the earth's ecology--we do not understand the role of clouds in
   the earth's temperature balance or what makes flowers bloom. Knowledge
   about how pollutants travel from one part of the environment to another is
   woefully inadequate. These are problems both of fundamental scientific
   knowledge and of inadequate data collection.

   Another difficulty with comparative risk is the effect of past and existing
   control efforts. (219)

The approach suggested by this Article addresses each overlooked cost or benefit. This model will not provide funding for the basic science that must be done to test the effects of the more than 60,000 chemicals in the current inventory, for example, but containment of materials within property boundaries, like the "bubble" concept sanctioned so long ago in air pollution, (220) would radically limit the impact of any such substances on the person and property of others.

III. CUBISM: ART APPLIED TO LIFE--A HOLISTIC VIEW

The thesis of this Article is quite straightforward. A three-dimensional grid based on existing property lines could be constructed using GIS, satellite monitoring, and even ground penetrating radar techniques. Any transgression of material or effects beyond the boundaries of a given property would have to be catalogued and all the costs internalized in some creative manner before development could be permitted. Single family residences, except subdivision development, could be exempted, which would also leave for each property at least one economic use. One residence on eighteen acres was sufficient for the dissenting Supreme Court justices in Palazzolo to find that the "total" element of the "total takings" equation was blocked. (221) This model preserves property lines and property rights of the generator and adds responsibility to the equation, raising receptors to equal footing. The model shifts the burden for development to the generators, rather than making receptors attempt to discern what the effect on their property would be and requiring them to meet those issues in a political, legal, or administrative arena. The transactional costs of development would increase, but receptors would be relieved of the existing burden of daunting transactional costs. All traditional pollutants and wastes would be included, including odor, noise, heat, and light, and indirect effects such as "growth-inducing" activities or indirect sources of air pollution could also be encompassed. (222) Analytically, any boundary crossing would constitute a trespass into either public or private property, and any interference with surface flow, ground water, or air mass would constitute legally sufficient damage to any property not owned by the generator. The burden would thus be shifted back to the polluter to explain and justify use of other public or private property for waste disposal or extraction of resources such as streamflow. This approach, illustrated by Figure 1, virtually eliminates externalities without disturbing the underlying system of property lines. (223)

A. Advantages of Cubism

There are several advantages that might be offered by a system that utilizes existing property boundaries to contain transboundary pollution, however unlikely implementation might be. (224)

1. The Bright Line

First, cubism imposes a bright-line test where the law has been fuzzy, but not warm. It substitutes an objectively measurable test with firm roots in the law of property and trespass as opposed to subjective concepts such as of the oft-used "reasonableness" standard.

2. Cubism Internalizes Costs

No offsite transfer of materials should occur nor should any owner add or modify any transitory resource without accounting for and paying all costs. Nothing could be simpler than to internalize the costs to the producer, rather than pass the costs on to unknown receptors. The point here is that subsidies offered by way of free waste disposal should be clear and not granted by default by a system of environmental laws that permit discharge.

3. Simplified Administration of Environmental Policy

No one seems to be satisfied with the status quo, thus the property law construct advanced in this Article would accomplish regulatory reform through the back door. First, the background principles would send a clear direction to all regulators that receptors' property rights must be protected. Second, regulators would be forced to account for all costs of any proposed emission, discharge, or modification of a transitory resource. Until statutory authority is sufficiently enacted to meet the constitutional objections of receptors, those regulators might even have to require zero offsite discharge, a perfectly permissible legal option. (225)

4. Cubism Would Tend to Balance the Transformative Economy with the Economy of Nature

The Transformative Economy's heavy reliance on property lines would form the backbone of cubism, yet requiring containment would also minimize effects inflicted on ecosystems by conduct on private property. Thus both systems are harmonized with the additional beneficial result that externalities do not occur.

5. Offsets and Mitigation Would Clearly Be Keyed to Both Science and Economics

Once possible transboundary phenomena are identified, the science to determine the effects and the economics to capture the costs would both form the basis for any decision to permit the pollution. The paradigm shift is that the burden would be on the generator, with all receptors given the right to test the decision.

6. This Solution Is Balanced Constitutionally

This solution is constitutionally balanced because it is grounded on fundamental property rights concepts rather than regulatory theory. There could be no "total taking," and even if there were, the "nuisance" exception noted in Lucas permits the concept discussed infra Part III(B).

7. The Concept Would Likely Have a Positive Economic Impact

First, basic science would be necessary to examine the actual effects and impacts of the chemistry that has evolved over the last hundred years. Second, consultants would be required to apply that knowledge in a given case. Finally, pollution control and process changes would be even more necessary and emissions and discharge trading should become even more essential (if permitted at all). One is reminded of the report of the first Council on Environmental Quality under President Nixon, which concluded after review by the major accounting firms that pollution control would have a net positive economic effect in all sectors. (226)

8. The Concept Meshes with Emerging Technology

New tools, such as GPS, GIS, ground penetrating radar, satellite imagery, and internet availability, are revolutionizing our worldview. Our enhanced ability to understand and catalog the nature and effects of externalities provides the data necessary to make the legal judgments suggested by this Article.

9. Popular Appeal

The popular appeal of the concept of responsibility should not be underestimated. This author believes that an objective poll would find that a vast majority of Americans favor imposition of responsibility on polluters rather than the current system of "catch us if you can," with the civilian population being used as guinea pigs for a chemical inventory, the effects of which will not be known for decades given current EPA funding for research. (227) Love Canal, Times Beach, Missouri, Three Mile Island, Erin Brockovich, and a host of other well-publicized national and international incidents have driven home the value of a safe environment, even to the real estate community. For example, the North Carolina Association of Realtors recently heralded on the cover of its monthly magazine the defeat of the "low level radiation facility" despite the fact that the decision means North Carolina has been expelled from the Southeastern Compact. (228)

10. Conflicts Among Governmental Entities Could Be Reduced

Regional approaches to transboundary pollution, such as the Tahoe Regional Planning Authority (229) and the Bay Area Air Pollution Court District, (230) have been implemented since at least the 1960s. However, they are difficult to construct and administer. Failing adequately to address transboundary effects has resulted in significant regional conflict, such as the acrimonious litigation between the northeastern states and the Atlantic states over N[O.sub.x] emissions. (231) Containing pollution within property boundaries clearly reduces transboundary pollution and thus intergovernmental conflict, unless the property at issue spans multiple jurisdictions.

11. The Cause of Environmental Justice Would Be Advanced

There is little dispute at this late date that people of color and those of certain economic status bear whatever burdens there may be (known and as yet unknown) of hazardous materials exposure. (232) The problem is so significant any detailed discussion is well beyond the scope of this paper. However, a policy that prevents transboundary pollution would assist in addressing the problem directly. Of course, the model suggested here does not directly address onsite health effects, which are subject to tort law, building and safety codes (e.g., asbestos and lead paint), and OSHA regulations, all of which might benefit from a similar analysis.

B. The Legal Basis for the Imposition of Responsibility

There is sound legal basis for the model outlined in this Article. Leopold has noted that generators naturally want more green sticks of privilege in their bundle of rights than the red sticks of responsibility. (233) Traditional legal principles can justify this approach for at least three reasons: 1) the police power to regulate is still a potent legal doctrine in almost all jurisdictions, especially when science can demonstrate the harm created by generators or when the harm is potential and generators cannot demonstrate the proposed conduct to be safe; (234) 2) modern cases applying historic doctrines of trespass and nuisance have edged very close to the concept; (235) and 3) environmental statutes like RCRA and the Clean Water Act have similar non-discharge concepts at their core. (236)

1. The Supreme Court Left Open the Door

Like organic systems, concepts of property are constantly evolving. (237) Since the time of Village of Euclid v. Ambler Realty Co. and the New Deal, the courts have recognized the wide discretionary power of the legislatures to limit activities on private property for the common good. (238)

a. Traditional Police Power to Regulate Remains Broad

In general, the standard to justify economic regulation under the police power, like those affecting land use, is whether the governmental action is "arbitrary and unreasonable." (239) In Lucas, the Supreme Court reaffirmed that land use regulation that does not result in a physical invasion (240) is not a taking as long as it "substantially advance[s] a legitimate state interest." (241) The Court in Lucas admitted that "[o]ur cases have not elaborated on the standards for determining what constitutes a `legitimate state interest' [but t]hey have made clear ... that a broad range of governmental purposes and regulations satisfy these requirements." (242) The Court also noted that "it seems to us that the property owner necessarily expects the uses of his property to be restricted from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers; `[a]s long recognized, some values are enjoyed under an implied limitation and must yield to the police power.'" (243) Thus, the Court held that the Fifth Amendment is violated only by legislative action which does not: 1) "substantially advance legitimate state interests," or 2) deprives an owner of all "economically beneficial" use. (244) This is a wide playing field bounded only by the language in the opinion, which tends to blend the concepts of title and regulation:

   We believe [that] ... regulations that prohibit all economically beneficial
   use of land: Any limitation so severe cannot be newly legislated or decreed
   (without compensation), but must inhere in the title itself, in the
   restrictions that background principles of the State's law of property and
   nuisance already place upon land ownership. (245)

The Supreme Court noted this when it offered the following two examples of regulations that eliminated "the only economically productive use" of property, but were part of historic nuisance and property law: 1) prevention of flooding others' property by restricting fill and 2) requiring removal of all physical improvements to property that is subject to some hazard inherent in the land or the activity, such as a nuclear power plant astride an earthquake fault. (246)

The model advanced in this Article is not often likely to lead to elimination of all economic uses, since at the very least a single-family residence would be permitted even if no other economic use could be made. The Supreme Court has noted that a regulation permitting a residential use would not constitute a deprivation of all economic use. (247) Indeed, that is all Mr. Lucas wanted, and the South Carolina Coastal Council eventually would likely have allowed it under an amendment adopted while the case was pending, but the Supreme Court took the case up anyway. Several of the current justices opined that one residence on twenty acres would likely satisfy the Constitution. (248) State courts have found value even in recreational uses, such as beach parking. (249)

If all economic use were eliminated by application of the model, however, the issue of application of "changes" in the law by either legislature or court is squarely reached. Justice Scalia has been unable to persuade the Court to address the issue. (250)

Drawing upon the examples cited by Justice Scalia in Lucas, though, one can see that broad retroactive regulatory schemes can be implanted as part of the "historic culture" of state property and regulatory law. If leaking underground storage tanks were not a problem at the time an owner acquired property and there were several on the property, is there any serious question that either a court or legislature could declare the new hazard to be a part of the "background principles" of nuisance and property law that permit exercise of the police power to address new hazards, even if the existence of those hazards rendered the property unfit for even that single family residence? To adopt Justice Scalia's reasoning completely effectively would deny effect to any scientific finding after the date of title acquisition. The New York Court of Appeals has already held that such background principles include even statutory environmental law and owners must be on notice that the laws can be changed to meet current conditions. (251)

The power of the legislature (if not the courts) to declare new categories of conduct to constitute nuisances is essentially unbounded. (252) Moreover, retroactive application of even radical changes in the law of real property liability, such as RCRA, have been upheld routinely, (253) and vigorous challenges to the extensive regulation imposed by section 9 of the ESA (254) have been rebuffed even by the current Supreme Court. (255)

Further, recent rulings have confirmed that there is no right to discharge offsite--as contemplated by the Constitution. (256) In fact, there is a clear recognition that zero discharge is a constitutionally valid concept. In Driscoll v. Adams, (257) the Eleventh Circuit Court of Appeals considered whether there exists a right to discharge to surface waters absent a statute which grants that authority. The court concluded that there is no requirement, constitutional or otherwise, to set a standard for every pollutant and thereby to permit some discharge. (258) As the court noted, the Clean Water Act outlaws any discharge to surface waters absent a regulation that authorizes a permit under the NPDES rules, and there is no requirement to authorize any discharge at all. (259) This is entirely consistent with the development of riparian common law. (260) Similarly, there is no right to discharge air pollutants in nonattainment areas--offsets must be secured or no discharge is permitted. (261) Technology forcing regulations, such as the early 1970s California Emission Standards (262) are unquestionably constitutional. New Interior Secretary Gale Norton disavowed comments attributed to her that property owners ought to have a "right to pollute." (263) Since no inherent right to discharge exists, a change to a non-discharge property system should not be a significant problem. (264) However, while potential pollution of public waters caused by the offsite effects of activities on private property can constitutionally constitute the basis for regulation that may radically limit building area and thereby destroy nearly all value, the Supreme Court did not rule out a taking if all economic uses were eliminated. (265)

The common law governing behavior on property evolved during the early part of this century into what could loosely be called the land use statutes. (266) In most states, land use statutes sanction use and impose building restrictions such as height, bulk, and setback requirements. (267) Unless the action of the zoning board of the locality is arbitrary and unreasonable, restrictions are likely to be upheld. (268) Anyone working in the land use area recognizes the degree of regulation that is routinely upheld. From historic preservation ordinances that dictate color to changes in the setback from the drip lines of old oaks that render previously platted building pads unusable, these regulations usually pass judicial muster. (269) "Aesthetic zoning," which was for years the most controversial of the zoning purposes, is now well-established in the law of most jurisdictions. (270)

In a related area of regulation that relates to the power of the legislative branch to delegate the details of regulation to agencies (which was also thought by most to be extinct after the New Deal), the Supreme Court just recently rejected a fundamental challenge to the delegation of power by Congress to EPA (and any other agency) in Whitman v. American Trucking Ass'n. (271) The Clean Air Act, like many other statutory schemes, requires that EPA set standards "requisite to protect the public health," with "an adequate margin of safety," based on factors that "accurately reflect the latest scientific knowledge." (272) The American Trucking Association (ATA) and other industrial groups asked the Court to follow a D.C. Circuit opinion, which invalidated controversial new air pollution regulations related to ozone and fine particulates, on the basis that the Clean Air Act worked as an unconstitutional delegation of legislative authority to EPA. (273) Not since Schechter Poultry v. United States (274) had the Court invalidated any regulatory programs on that basis, and this Court had no difficulty rejecting the ATA argument. (275) The Court reviewed language from several recent cases, and noted that there were virtually no successful delegation challenges: "Our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power." (276)

The Court was also faced with a contention that EPA had to consider cost when implementing air quality standards, (277) an argument that had been decided just twenty years ago in Lead Industries Ass'n v. EPA. (278) Again the Court handily rejected the claim, although it still managed to void the regulations because of conflicting sections added by different sessions of Congress. (279) Still, the current Supreme Court has shown a willingness to limit, in fundamental ways, the power of regulatory agencies--such as the recent decision voiding the Army Corps of Engineers jurisdiction over so-called "inland" wetlands. (280)

Even if the Supreme Court had adopted the lower court opinion in Whitman, of course 1) Congress has the power itself to set standards, and 2) the standards set by Congress could be zero, with the burden on the generator to demonstrate the safety of the proposed offsite transfer and internalization of costs, much as the Food and Drug Administration requires producers to demonstrate that their products are both "safe" and "effective." (281) Then presumably, Congress could also make the determination as to whether any offsite transfer would be allowed based upon whether property or personal rights of others were adversely affected, (282) and whether, if allowed, the standard would effectively subsidize the generator by permitting discharge without requiring complete internalization of costs. Economically, if a legislative body found that sufficient damage to the economy of the jurisdiction were likely to occur because of the imposition of responsibility, the body could provide relief by 1) imposing liability limits, much as the nuclear industry enjoys under Price-Anderson (283) and the tobacco industry has just achieved to shield itself from litigation, (284) and 2) providing economic aid, technical assistance, or outright tax breaks. At least the issue would be acted on in the light of day--an unbiased fiscal analysis would be performed, and the public could conceivably even vote on the issue.

b. Lucas Has Been Soundly Criticized and Could Be Construed and Limited Differently By Future Courts

As noted, in Lucas, the Supreme Court addressed only the concept of "total regulatory takings." Numerous authors, including dissenting Justices Blackmun and Stevens, have noted that in the Lucas opinion Justice Scalia opened the door to a potential Pandora's Box when he excepted from his analysis any regulation that eliminates all economic value, but which is grounded upon "background principles of state property and nuisance law." (285) There is little debate that prior to the decision, nuisance, trespass, and property law had been in a state of constant flux for several hundred years before Justice Scalia selected Mahon and the era of substantive due process as the point where the music stopped to mark the current measure of regulatory takings cases. (286) In fact, Keystone Bituminous Coal Co. v. De Benedictis (287) represents one incarnation of the Supreme Court already effectively overruling the narrow holding of the Mahon case. (288) Thus, the Court has changed the rules at least twice, in 1922 and 1987. In a similar fashion as Mahon, Lochner was overruled by the New Deal cases. (289)

Justice Blackmun and commentators have also directly attacked the logic of the Lucas total regulatory takings analysis on the basis that 1) it is not an accurate statement of the law prior to the Industrial Revolution, because the concept was wholly unknown prior to Mahon (thus strict constructionists could not find a basis for the concept); (290) 2) the reasoning of the case had already been overruled (albeit narrowly) in Keystone; (291) and 3) the case may be distinguishable since the rights of the coal company to the subterranean coal reserves were specifically mentioned in the chains of title of each complaining landowner in Mahon. (292) Is the case really one of interference with existing contracts and completely unlike the situation where a landowner simply has inchoate rights in his bundle of green sticks that everyone, including the Founding Fathers, knew to be changeable according to the needs of society?

At issue are two key questions: 1) Did the court really mean to fix "background principles of state property law" into the acquisition of the property in question?, and 2) even if that was the intent of the court, a) will state courts follow it, particularly given the deference shown by the current Supreme Court majority to states' rights and b) do those background principles include the fluid fields of nuisance law, property law, and statutory environmental law, as a New York Court has held? (293)

The Court has spoken to the first issue in Palazzolo (certiorari was denied in Stevens v. City of Cannon Beach), but the splintered majority only held that a regulation in place prior to the time the owner took title could still be attacked as an unconstitutional taking. (294) Justice O'Connor thought a prior regulation could diminish an owner's claim to a "reasonable, distinct investment-backed expectation." (295) Justice Stevens thought that any regulation that predates title is per se part of the background principles that are exempt from total takings. (296) Constitutional scholars disagree strongly on these fundamental questions, and it is beyond the scope of this Article to analyze these questions in depth. The point is that there are enough open questions to enable future courts, particularly with the imminent appointment of three new justices in the near future, to have ample fabric with which to permit creative interpretations of state real property and regulatory law, even within the framework of the Lucas decision. It would also be entirely appropriate given the recognized ability of the Court to alter its course. (297)

2. Background Principles of State Nuisance and Trespass Law Provide a Basis for the Cubism Model

Even if the principles outlined in this Article resulted in no economically beneficial use for a given parcel, the exception noted above for state property law would seem to provide a shield for legislative or judicial action. There is ample case authority, established centuries ago, that nuisance and property law are malleable according to current conditions. (298) This would bring full circle a trend that originated at the birth of the Industrial Revolution, which substantially changed the law of nuisance from a standard of strict liability (sic utero tuo) to the post-Industrial standard of reasonableness. (299) The determination whether conduct constitutes a nuisance depends on variables such as location, nature of the use, character of the neighborhood, extent and frequency of the injury, and the effect on the enjoyment of life, health, and property. (300) "Changed circumstances or new knowledge may make what was previously permissible no longer so." (301) For hundreds of years, as new needs have emerged, the thresholds of nuisance have evolved. The law of nuisance has been able to evolve, not just through private initiatives of litigants in court, but also through the democracy driven processes of elected state legislatures. (302)

Trespass, a seemingly zero tolerance, strict liability concept, evolved to protect the sanctity of property, and damage from any trespass was presumed. As Blackstone and Locke both noted, it is the protection of the legal interest (the space inside the "cube") of the owner in the estate, not any actual damage, that is the gravamen of trespass, until recently. (303) The rights accorded property holders were considered fundamental in part because of breaches of the peace resulting from even trivial or inadvertent trespass. (304) Limitations on the right of action itself stem from 1) the difficulty the common law had in dealing with continuing trespass (statutes of limitation), (305) 2) the need to prove intent, 3) and the difficulty of applying the law to new scientific principles, such as new and invisible phenomena--"out of sight, out of mind" was the Industrial Revolution rule. (306) The hornbook law is "[e]very unauthorized entry upon another's realty is a trespass, regardless of the degree of force used or the amount of damage." (307) Even a de minimis physical intrusion by the government is actionable as a taking (308) because there has historically been no de minimis defense. (309)

   [E]ven if no damage is done or the injury is slight and gives rise to a
   cause of action for nominal damages at least. It will be presumed that
   injury resulted even if it was no more than the trampling of the urbage.
   The entry need not be in person, but may be by the projection of force
   beyond the boundary of the land where the projecting instrument is
   employed. Thus the trespass may be committed by casting earth, or rather
   substances, upon another's land, by projecting anything into, over, or upon
   the land; by discharging water thereon, or by felling trees so that they
   fall upon the land. Trespass may also be committed by shooting onto or over
   the land, by explosions, by throwing inflammable substances, by blasting
   operations, by discharging soot and carbon, but not by mere vibrations or
   by the casting of light on the premises.

   Every trespass on realty is considered to result in legal injury ... for an
   injury to the land itself, the general rule is to the measure of damages is
   the difference in value of the land before and after the trespass, and this
   means the difference in value of the entire tract, not merely the ground of
   the exact place of injury. (310)

Diversion of water can also constitute a trespass. (311)

If the land can be restored at a cost less than the diminution in value, the cost of restoration is the proper measure. (312) Lessees as well as owners may sue. (313) A major limitation of trespass in most jurisdictions is that it cannot be merely negligent. (314) However, this element is satisfied where it can be demonstrated that, for example, "one who knowingly discharges asphalt in such a manner that it will in due course invade a neighbor's realty and cause harm." (315)

Trespass historically protected the possessor's interest in exclusive possession of the property, while nuisance protected the interest of the owner or occupant in the use and enjoyment of the property. (316) For example, vibration and lights, which to date have not been included within the concept of trespass, could constitute a nuisance. Again, the black letter law:

   The term signifies in law such use of property or such a course of conduct
   as, irrespective of actual trespass against others or of malicious or
   actual criminal intent, transgresses the just restrictions on use or
   conduct which the proximity of other persons or property in civilized
   communities imposes on what would otherwise be rightful freedom. In legal
   phraseology, the term "nuisance" is applied to that class of wrongs that
   arise from the unreasonable, unwarrantable or unlawful use by a person of
   his own property, real or personal, or from his own improper, indecent, or
   unlawful personal conduct, working in obstruction or injury to the right of
   another, or of the public, and producing such material annoyance,
   inconvenience, discomfort or hurt that the law will presume a consequent
   damage.... [T]he term "nuisance" is used to designate the wrongful invasion
   of a legal right or interest, and it comprehends not only the wrongful
   invasion of the use and enjoyment of property, but also the wrongful
   invasion of personal rights and privileges generally. "Nuisance" refers to
   the type of interest invaded, and not to any particular type of conduct
   from which the invasion results, and it may include conduct which is
   intended to inflict harm, negligent conduct, or extra hazardous activity.
   (317)

The Restatement (Second) of Torts formulation is similar. Nuisances are classified as public, where they affect the rights enjoyed by more than a few property owners, private, where a limited number of private properties are affected, or "mixed," where both public and private injury occurs. (318)

Accordingly, while everyone has the right to use his property as he sees fit, this right is subject to the implied obligation of every owner or occupant of property to use it in such a way that it will not be unreasonably injurious to the equal enjoyment of other property owners having an equal right to the enjoyment of their property, or injurious to the rights or welfare of the community. Conversely, every citizen or property owner has the right to the enjoyment of his property or home without hurt or injury from any unlawful acts or conduct of his neighbor. (319)

Nuisances are generally factbound. The California Supreme Court addressed the issue in People v. Lim. (320) "Nuisance is a term which does not have a fixed content either at common law or at the present time. Blackstone defined it so broadly as to include almost all types of actionable wrong." (321) One significant problem in applying nuisance to modern industrial society stems from the fact that the historic definition of nuisance permits a judge wide discretion, since a nuisance is only "an `unreasonable' interference with the property rights" of another. (322) Such a subjective standard forms the basis for change in the law: "[T]he commercial or industrial progress of the age may require the modification of the old rules of the common law with respect to nuisances, and their judicious application to changed circumstances." (323) The Industrial Revolution permitted the common law courts substantially to change the law of nuisance since the determination allows consideration of variables such as the economic impact of the use, as well as historic factors such as location, nature of the use, character of the neighborhood, extent and frequency of the injury and the effect on the enjoyment of life, health, and property.

   On the question of fact whether the smell, smoke, or fumes of manufacturing
   establishments were of such character as to constitute nuisances, the
   decisions indicate great liberality towards industrial establishments.
   (324)

The courts have wide policy latitude with respect both to the rights and the remedies in nuisance cases because the court balances the interests of the litigants at several stages. Plater opines that there are at least three discrete "balancing" processes undertaken by any court in a nuisance case, more than enough variables to make the outcome uncertain. (325) Courts in the midst of the Industrial Revolution thus justified the release of fumes, gases, and vapors into the air and onto other property on economic grounds. (326) As the Pennsylvania Supreme Court observed 100 years ago in an action brought by a downstream property owner to enjoin pollution by a coal mining company,

   [W]e are of opinion that mere private personal inconvenience ... must yield
   to the necessities of a great public industry, which ... subserves a great
   public interest. To encourage the development of the great natural
   resources of a country, trifling inconveniences to particular persons must
   sometimes give way to the necessities of a great community. (327)

Even where a nuisance is found to exist, the equitable remedies fashioned by the court are by no means certain. In recent cases, while the definition of nuisance remains untouched, industrial use has been accommodated by modifying the remedy sought by the complaining party. In the classic case of Boomer v. Atlantic Cement Co., for example, plaintiff Oscar Boomer and his neighbors complained that the dust, noise, and vibration from a Portland cement plant disturbed their peace and health and diminished property values. (328) The New York Court of Appeals held that, even where the noise, dust, and vibration were clearly "unreasonable" (and, therefore, a nuisance), the historic common law rule that an injunction would follow automatically to abate the nuisance could be abrogated by a showing that the economic cost to the defendant or the community (i.e. jobs and tax base) would outweigh the imposition on the plaintiffs. (329) Thus, the law of nuisance can turn sharply to eliminate a remedy--even where the judge determines that a nuisance exists--if the court finds that the economic interests of defendants or the community as a whole are significant. The Boomer court also noted that technological feasibility can be considered by courts crafting remedies for a nuisance. (330) This is something like the "best available technology" or "best management practices" standards that are widely used in the environmental regulatory world. In Boomer, instead of imposing an immediate injunction because of the existence of the nuisance, the court delayed an injunction pending development of pollution control devices for the Portland cement plant involved. (331)

The application of the concept of nuisance in modern society thus depends on the jurist hearing the case and her application to both the violation and remedy of the value-laden term "reasonableness." This effectively turns trial judges into land use planners. (332) As the New York court said in Bove, "[i]t is true that ... when the plaintiff built her house, the land on which these coke ovens now stand was a hickory grove. But ... this region was never fitted for a residential district; for years it has been peculiarly adapted for factory sites." (333) The Boomer court candidly opined that management of pollution related issues should be accomplished by the legislature rather than through individual cases. (334) Justice Douglas noted in his dissent in Lucas that

   [t]here is perhaps no more impenetrable jungle in the entire law than that
   which surrounds the word "nuisance." It has meant all things to all people,
   and has been applied indiscriminately to everything from an alarming
   advertisement to a cockroach in a pie. It is an area of law that "straddles
   the legal universe, virtually defies synthesis, and generates case law to
   suit every taste." The Court itself has noted that "nuisance concepts" are
   "often vague and indeterminate." (335)

The concepts of trespass and nuisance both require that a private plaintiff or a representative public officer step forward and bear the expense of litigation, including, for example, bonds to secure a temporary restraining order or preliminary injunction. The concepts also require that, for the most part, the horse already be out of the barn. The remedies available are limited to particular cases and cannot accomplish comprehensive reform or even planning. All of these reasons and the statutory roadblocks imposed by right to farm acts and zoning ordinances have made utilization by private citizens difficult and expensive. (336)

Some courts have begun to upgrade the common law (is it infinitely upgradable?) to reflect modern scientific understanding. There is a trend among modern property pollution cases to blend the analysis of nuisance and trespass. When is a trespass not a nuisance? Seldom, said the Alabama Supreme Court in Borland v. Sanders Lead, Inc. (337) Courts such as the Oregon Supreme Court in Martin v. Reynolds Metals Co., the Washington Supreme Court in Bradley v. American Smelting & Refining Co., and the Alabama Supreme Court in Borland have recognized that, in the late twentieth century, where the theory of relativity and the existence of subatomic particles are common knowledge, the only limitations on our ability to detect a trespass are those of instrumentation. (338)

In Borland, the plaintiffs sued a battery recycling facility for damages resulting from air emissions of lead particulates and sulfoxide gases. (339) The smelter had installed the "bag house" and other pollution control devices, but "upsets and breakdowns" had resulted in a dangerous accumulation of lead on the plaintiffs' properties. (340) The trial court concluded that the air pollution permit from state authorities shielded the company from suit, a claim that the supreme court rejected. The Alabama Supreme Court considered the interplay of nuisance and trespass, noting that some courts had imposed a fictional, "dimensional test" onto the common law tort. (341) If the invading substance could be seen then the invasion was direct and substantial, and therefore, a trespass, while an invasion by unseen materials could only constitute a nuisance. (342) Drawing upon the Martin case, the court rejected the dimensional test, saying that:

   The view recognizing a trespassory invasion where there is no "thing" which
   can be seen with the naked eye undoubtedly runs counter to the definition
   of trespass expressed in some quarters. It is quite possible that in an
   earlier day when science had not yet peered into the molecular and atomic
   world of small particles, the courts could not fit an invasion through
   unseen physical instrumentalities into the requirement that a trespass can
   only result from a direct invasion. But in this atomic age even the
   uneducated know the great and awful force contained in the atom and what it
   can do to a man's property if it is released. In fact, the now famous
   equation E=m[c.sup.2] has taught us that mass and energy are equivalents
   and that our concept of "things" must be reframed. If these observations on
   science in relation to the laws of trespass should appear theoretical and
   unreal in the abstract, they become very practical and real to the
   possessor of land when the unseen force cracks the foundation of his house.
   The forced is just as real if it is chemical in nature.... Viewed in this
   way we may define trespass as an intrusion which invades the possessor's
   protected interest in exclusive possession, whether that intrusion is by
   visible or invisible pieces or matter or by energy which can be measured
   only by the mathematical language of the physicist. (343)

Similarly, in Bradley, the Washington Supreme Court found the intent element of trespass was clearly satisfied on common facts noting that:

   [The defendant smelter] has known for decades that sulfur dioxide and
   particulates of arsenic, cadmium and other metals were being emitted from
   the tall smokestack. It had to know that the solids propelled into the air
   by the warm gases would settle back to earth somewhere. It had to know that
   a purpose of the tall stack was to disperse the gas, smoke and minute
   solids over as large an area as possible and as far away as possible. (344)

The court also agreed with the Martin and Borland courts declaring that:

   [T]he line between trespass and nuisance has become, "wavering and
   uncertain" ... they are largely coextensive. Both concepts are often
   discussed in the same cases without differentiation between the elements of
   recovery.... It is also true that in the environmental area both nuisance
   and trespass cases typically involve intentional conduct by the defendant
   who knows that his activities are substantially certain to result in an
   invasion of plaintiffs interest. The principal difference in theories is
   that the tort of trespass is complete upon a tangible invasion of
   plaintiffs property, however slight, whereas a nuisance requires proof that
   the interference with use and enjoyment is "substantial and unreasonable."
   (345)

The Martin, Borland, and Bradley courts all held that any transgression of the boundaries by even minute particles, light, or vibration constitutes a trespass. (346) The Bradley court noted with unusual candor that, following traditional rules, both nominal damages and an injunction to prevent invasion of the receptor's rights should therefore result. (347)

   This burden of proof advantage in a trespass case is accompanied by a
   slight remedial advantage as well. Upon proof of a technical trespass
   plaintiff always is entitled to nominal damages. It is possible also that a
   plaintiff could get injunctive relief against a technical trespass--for
   example, the deposit of particles of air pollutant on his property causing
   no known adverse effects. The protection of the integrity of his possessory
   interests might justify the injunction even without proof of the
   substantial injury necessary to establish a nuisance. Of course absent
   proof of injury, or at least a reasonable suspicion of it, courts are
   unlikely to invoke their equitable powers to require expensive control
   efforts. (348)

The Bradley court also noted that:

   The Restatement (Second) of Torts [section] 821D, comment d, at 102 (1979)
   states: "For an intentional trespass, there is liability without harm; for
   a private nuisance, there is no liability without significant harm. In
   trespass an intentional invasion of the plaintiffs possession is of itself
   a tort, and liability follows unless the defendant can show a privilege. In
   private nuisance an intentional interference with the plaintiffs use or
   enjoyment is not of itself a tort, and unreasonableness of the interference
   is necessary for liability." (349)

Sensing the gravity of these conclusions, each court limited the impact of its decision by crafting, from the proverbial "whole cloth" of the common law, a de minimis defense (or element of the cause of action) that did not previously exist at common law. A trespass is now actionable in these, and many other "modern" jurisdictions, only if there is 1) deposition and 2) substantial damage 3) to the underlying res. (350) The Borland court discussed its rationale:

   It might appear, at first blush, from our holding today that every property
   owner in this State would have a cause of action against any neighboring
   industry which emitted particulate matter into the atmosphere, or even a
   passing motorist, whose exhaust emissions come to rest upon another's
   property. But we hasten to point out that there is a point where the entry
   is so lacking in substance that the law will refuse to recognize it,
   applying the maxim de minimis noncurat lex--the law does not concern itself
   with trifles. In the present case, however, we are not faced with a
   trifling complaint. The Plaintiffs in this case have suffered, if the
   evidence is believed, a real and substantial invasion of a protected
   interest. (351)

The Bradley court returned to Professor Rogers to justify limiting the remedy for trespass:

   While the strict liability origins of trespass encourage courts to eschew a
   balancing test in name, there is authority for denying injunctive relief if
   defendant has exhausted his technological opportunities for control. If
   adopted generally, this principle would result substantially in a
   coalescence of nuisance and trespass law. Acknowledging technological or
   economic justifications for trespassory invasions does away with the
   historically harsh treatment of conduct interfering with another's
   possessory interests. (352)

The Bradley court then articulated its rationale:

   When airborne particles are transitory or quickly dissipate, they do not
   interfere with a property owner's possessory rights and, therefore, are
   properly denominated as nuisances. When, however, the particles or
   substance accumulates on the land and does not pass away, then a trespass
   has occurred. While at common law any trespass entitled a landowner to
   recover nominal or punitive damages ... [n]o useful purpose would be served
   by sanctioning actions in trespass by every landowner within a hundred
   miles of a manufacturing plant. Manufacturers would be harassed and the
   litigious few would cause the escalation of costs to the detriment of many.
   (353)

Thus, though the courts acknowledged in passing their radical departure from the historic law of trespass, each jurisdiction nonetheless elected to add the element of "substantial damage to the res" in trespass cases. As noted earlier, the Martin court justified the departure from the strict protection of the possessor's legal interest because in its view, the risk of breaches of the peace because of trespasses had diminished. Quoting Professor Winfield: "At the present day there is, of course, much greater respect for the law in general and appreciation of the security which it affords, and the theoretical severity of the rules as to land trespass is hardly ever exploited in practice." (354) One might wonder if that is true, and one might also wonder why the general population should be entitled to any less protection from exposure of to a wide variety of unseen chemicals and phenomena the effects of which may well be unknown (355) than it is entitled to for physical entry by a person? (356) Clearly, the real reason was the same result-oriented reason the New York court in Boomer refused the injunction that it conceded to be demanded by precedent. Each court was more willing to alter historic common law than it was to risk unquantified economic damage by forcing the internalization of costs passed on to others via offsite disposal of waste in the airshed. What of the historic and investment-backed expectations of property rights of receptors that these courts eliminated in the process? Even a de minimis trespass would be an unconstitutional taking of the receptor's property rights, according to the Supreme Court in Loretto v. Manhattan Teleprompter CATV Corp. (357) The argument that "the floodgates of litigation will be opened" holds only so much water when important competing rights are involved (civil rights actions, products liability, and liability for ultrahazardous activities, for example, all triggered substantial litigation to protect the newly enunciated rights). (358) Of course, any court that can change the common law so dramatically could change it back in the ways suggested by this Article. Interestingly, in light of the Lucas exemption for state property law, both the Borland and Bradley courts elected to characterize their decisions as an "application" and not an "extension" of existing law. (359) Ironically, all three courts rejected the dimensional test, a physical test that had been grafted on to the original concept of protection of the legal estate, but replaced it with another physical test: substantial damage to the res. Note that these courts simply refused to consider restricting offsite transfer of materials from the property of the generators, which would have had the effect of internalizing costs and eliminating any need for litigation by other property owners.

Analytically, it would be straightforward for a court to rectify the misstep and to return to historic trespass but without any new elements (minus the "dimensional test"). Even a de minimis trespass authorized by government without compensation is a violation of the constitutional rights of the receptor. (360) Why then should recognition of the scientific reality that trespass can occur via invisible particles mean that to be actionable in a given case "substantial damage" to the res must be proved by the owner of each individual property? Why should generators of small or invisible particles be held to a less stringent standard than a "visible" trespass, especially given that many such compounds and materials are more toxic than visible intrusions? Merely tossing a football through the airspace of a property constitutes an actionable trespass, but if the intruding agent is invisible, the burden is on the receptor to detect, analyze, and prosecute the trespasser. There is the further problem that damage merely to the value of the res does not seem to satisfy most courts that have considered the issue post-Borland, even though diminution in value is the proper measure of damages once a trespass is recognized. (361) Even the bankruptcy courts recognize the real economic affect of "environmental stigma," (362) yet damage to value is not sufficient to constitute substantial damage to the res.

The question heretofore has been whether more than nominal damages would be justified by a given trespass. Now, the quantum of damage to the property (and not damage to the value of the property apparently determines whether there has been a trespass. Perhaps these courts were heeding the call to judicial restraint expressed by the Boomer court when it noted that a comprehensive program of environmental protection was really more properly addressed in the legislative arena. (363) However, there seems to be no analytical reason why this wholesale shift in the law of trespass should have occurred given the purpose of trespass to protect the legal estate, other than concerns expressed by the Bradley court of the possible results of return to such a rule where 1) litigation to protect property rights would undoubtedly increase substantially until the trespasses decreased substantially, and 2) there would certainly be an economic effect on generators. (364)

If there were to be any common law relief to the principle at all, that defense already exists as the historic defense of necessity. A common law school example of necessity is the boater who is on a lake when a sudden thunderstorm comes up and who ties up to a pier owned by another. A limited trespass to permit one to reach safety is protected by the defense. (365) A limited right to pollute under certain circumstances might be excused. This approach is also more consistent with earlier nuisance law, where even after the relaxation in law following the Industrial Revolution the burden to justify the action was on the polluter. (366)

The courts have a number of theories to support various remedies. Damages is the usual legal remedy for trespass in the form of diminished property value, (367) but damages may not be detected for decades and the trespasses may cause far more damage to the value of the underlying property than to the res itself. The questions with traditional trespass relate more to causation (and solvency) if classic personal injury such as long-term exposure to a carcinogen is present. The issue here, though, is how actually to impose the responsibility on the generator to avoid transboundary migration of pollutants. Significant damages may not be present and ideally would not be present because the purpose is prophylactic.

As the Bradley court noted, once trespass is proved, an injunction could issue to prevent future trespass. Historically, courts also have jurisdiction to enjoin trespasses 1) when there is irreparable injury, 2) where the remedy at law (damages) is inadequate, 3) to avoid the multiplicity of suits that continuing trespass would involve, or 4) to prevent the trespasser from acquiring a property interest by adverse possession, prescription, or some other property concept. (368) Commonly, the injury cannot easily be measured completely in monetary terms, which often satisfies both the grounds of irreparable injury and the criterion that the legal remedy (damages) is inadequate. Additionally, recent cases, such as the Bormann case, verify that imposition of a nuisance on receptor property works the imposition of a property interest (an easement) in favor of the generator on the receptor property. (369) Interestingly, the defendant in Bradley urged that it had acquired a prescriptive easement over plaintiffs property so that a nuisance could never arise, but the claim was rejected by the court. (370) The Bradley court stated that "[a]s a practical matter, this would indeed be a blatant and flagrant pollution of adjoining land to start the running of the prescriptive period and to forever bar the landowner from recovering for the continuing activity of the polluter." (371) Since that is true for nuisance, sanction of a trespass that physically invades space should constitute a similar imposition on the interest of the receptor (servient) property and an injunction should issue. Why should generators ought to be accorded free dumping rights on or free passage over or under receptor property? Finally, courts have issued injunctions against a "naked trespass" to enjoin a defendant who is admittedly without claim of right in the law of equity, even when there is no significant injury and even when damages are appropriate. (372) There is little question that a given landowner has a reasonable expectation that his or her land will be free from harms generated elsewhere, thus the "naked trespass" of even invisible particles ought to be enjoinable. In fact, it is just that "feeling" the Martin court found to be at the core of the rights of receptor owners:

   Probably the most important factor which describes the nature of the
   interest protected under the law of trespass is nothing more than a feeling
   which a possessor has with respect to land which he holds. It is a sense of
   ownership; a feeling that what one owns or possesses should not be
   interfered with, and that it is entitled to protection through law. This
   being the nature of the plaintiffs interest, it is understandable why
   actual damage is not an essential ingredient in the law of trespass. (373)

The court in Martin nonetheless imposed the damage requirement. (374) The burden is now on the receptor to determine whether there is an invasion and whether it is harmful.

A court could frame the injunction in specific terms designed to contain the pollutant(s) to the generator property, eliminating the need for additional litigation by other owners and occupiers of land. Once equitable remedies become available, the court could, at the very least, shift the burden of proof to the generator to rebut the facts and to demonstrate that the activity involves no externalized cost, or a court may propose creative methods to internalize the costs that would not involve a "taking" or private condemnation of receptors' properties.

Thus, trespass has formed the basis of injunctive relief in the environmental context, particularly in the area of point source water pollution. (375) The advantage of trespass, beyond strict liability and the possibility of punitive damages, is that a court could enjoin the pollution at the source property, even if the plaintiffs property is not contiguous, since the generator ought not be the source of trespass to any property, public or private. The most direct method to prevent pollutants, and other offsite effects, from reaching plaintiff-receptors' property is to restrict them to the generator property. If all owners join, the issue is moot, but a court ought to require all generators to contain pollutants at the source rather than require either a massive lawsuit or numerous individual lawsuits, since oftentimes the source can be identified and most of the affected property can be identified with little difficulty. One can stop a plumbing leak at the source or one can put up barriers against the leaking water a block from the source.

While the court has wide discretion to enjoin a continuing trespass, it must be recognized that the court conversely has several opportunities to "balance" interests in the realm of equitable jurisdiction. So a court may refuse an injunction on the basis that 1) the trespass is minimal, 2) the legal remedies are adequate, 3) the injuries are not irreparable, or 4) the balancing of the equities, per Boomer, militates against imposition of an injunction. (376) The existence of a permit issued by any agency, however, should not be a defense. (377)

Of course, any court could likely issue an injunction on behalf of a public official to prevent a trespass, especially of a continuing nature, and criminal trespass statutes could be employed. Given the constitutional authority of most prosecutors to protect the health and safety of the citizenry, one could certainly argue that an action to protect important public rights ought to receive maximum attention from the courts. The problem is finding a public official willing to act.

The point is that tools are available should a court wish to give force to the concept that the sanctity of private (and public) property must be protected, regardless of the quantum, of identifiable harm. The court could also use trespass as a basis for triggering additional equitable causes of action:

1) Nuisance: A continuous trespass could itself constitute a nuisance, per the Borland model. (378)

2) Unfair Competition: In any commercial context, a continuous illegal trespass could constitute unfair competition under both the Federal Trade Commission Act (FTCA) (379) and similar state acts. (380) Theoretically, those who comply with the law incur expenses (internalization of costs) that trespassers do not, thereby injuring competition. Under California law, any pattern of unlawful conduct constitutes unfair competition, which would entitle a plaintiff to injunctive relief, but not private damages. (381) In North Carolina, the statute does not mention unlawful conduct, but rather prohibits unfair practices and allows for treble damages. (382) In most states, the district attorneys and attorneys general also have the right to enforce the codes. (383)

3) Strict Liability: Offsite migration of materials has triggered strict liability for ultrahazardous activities as demonstrated by classic cases such as Yommer v. McKenzie (384) and as described in the Restatement (Second) of Torts. (385) However, the threshold requirement of determining whether a particular activity is ultrahazardous (or "abnormally dangerous") involves more discretion than a determination that material has transgressed boundaries. Of course, some transboundary pollution may also be actionable under RCRA or CERCLA. (386)

4) Negligence: Negligence can also support an action for transboundary pollution, but the burden is on the plaintiff to demonstrate fault.

3. The Constitutional Dimension of Both Public and Private Receptors' Rights Has Been Magnified by Several Recent Developments

Several courts have recognized that the imposition of a nuisance by either governmental action or governmental inaction can constitute a taking of the valuable property rights of receptor property.

a. The Rights of Private Receptors

In 1998, the Iowa Supreme Court declared Iowa's Right to Farm Act (387) unconstitutional, because the act, like those in most states, provided immunity to farm operations from nuisance suits. (388) Neighbors complained of odor and water quality issues and challenged the county's approval of a 960-acre proposed intensive livestock operation because that designation triggered application of the nuisance shield provision of the Iowa Right To Farm Act. (389) The court reasoned that this restriction meant that state action permitted the imposition of a legal servitude or easement on the neighboring properties without providing compensation for the deprivation of the receptors' property rights. (390) The court drew upon Richards v. Washington Terminal Co., (391) a 1913 Supreme Court case from the Lochner era, and other cases involving invasion of the physical space of property owners by cable installers, low-flying aircraft, flooding, and odors from sewage treatment plants, (392) concluding that odors from the site physically invaded the adjacent properties, thus working a "taking" of the airspace of the receptors. (393) The court stated that

   generation of offensive odors, gases, smoke ... may constitute a taking.
   The commentator ascribes a name to the theory of these cases: condemnation
   by nuisance. And the commentator has formulated the theory this way:
   "governmental activity by an entity having the power of eminent domain,
   which activity constitutes a nuisance according to the law of torts, is a
   taking of property for public use, even though such activity may be
   authorized by legislation."

   Whether you flood the farmer's fields so that they cannot be cultivated, or
   pollute the bleacher's stream so that his fabrics are stained, or fill
   one's