Our federal government currently pursues environmental protection largely through regulations that require others to comply with detailed standards or prescribed patterns of conduct. This approach conflicts too fundamentally with the autonomy interests of landowners, and of the state and local governments that regulate land use already, to allow federally imposed limits on private land use. Yet environmental improvement will increasingly require land use limits. To achieve them, regulation should be replaced with "bargaining entitlements "--assets of limited value that the federal government could use to negotiate with other parties for necessary restrictions. Indeed, agencies are already converting their regulatory powers into such entitlements. By using bargaining entitlements, the federal government would act more as an equal participant in negotiations than as a unilateral issuer of "top down" commands. That change in approach could reconcile the conflicting interests of landowners, state and local governments, and environmentalists more effectively than regulation. It could provide more effective environmental protection; it could improve both respect for property rights and the constitutional defensibility of federal land-use control efforts; and it could encourage the development of regional land-use plans, which will be needed to reconcile environmental protection with other social interests.
William F. Pedersen,
Using Federal Environmental Regulations To Bargain for Private Land Use Control,
Yale J. on Reg.
Available at: http://digitalcommons.law.yale.edu/yjreg/vol21/iss1/2