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Environmentalist lawyer seeks common ground in property-rights debate

Jan Dennis, Business & Law Editor
217-333-0568; jdennis@illinois.edu

Eric Freyfogle
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Photo by Mark Jones
Eric Freyfogle, the Max L. Rowe professor of law, hopes his latest book sparks a long-overdue study to redefine
private-property rights, seeking middle ground between landowners and the typically polar-opposite concerns of conservation and environmental groups.

12/6/2007

CHAMPAIGN, Ill. — Don’t blame just Hurricane Katrina for leaving New Orleans in shambles or single out wildfires for thousands of homes reduced to rubble this year across southern California, a University of Illinois law professor says.

Eric Freyfogle contends America’s flawed notion of private property rights is largely at fault, often paving the way for disaster by letting landowners – not logic – dictate development.

Building on flood-prone ground or timber-lined mountains are just a few of the perils of unbridled growth, says Freyfogle, the author of a book published last month examining the nation’s festering debate over private property rights.

Freyfogle maintains an outdated and often misguided view of property rights also is behind urban sprawl, vanishing wildlife habitats and even contributes to pollution and energy woes as people build homes too far from where they work and shop.

“Sensible land planning can significantly reduce these problems, but we’re having a big problem with sensible land planning,” said Freyfogle, the author of “On Private Property: Finding Common Ground on the Ownership of Land” (Beacon Press).

America’s land-use troubles stem from private-property rights that have tipped too far toward landowners over the last century and away from the needs of society as a whole, said Freyfogle, who has written six books on private property and conservation issues.

“My argument is that private-property rights are chiefly a tool, an arrangement to govern the landscape and divide rights to use the landscape,” he said. “It is a governance institution that is justified by the benefits it brings to society and it is an individual right only secondarily.”

Freyfogle hopes his latest book sparks a long-overdue study to redefine private-property rights, seeking middle ground between landowners and the typically polar-opposite concerns of conservation and environmental groups.

Recent debate has achieved little more than “bumper-sticker slogans,” as property-rights activists and conservationists each refuse to budge, said Freyfogle, the university’s Max L. Rowe professor of law.

He criticizes conservationists for muddying the debate by supporting government programs that offer land-use incentives, such as paying farmers to leave ground uncultivated or to reduce their use of chemicals.

“The reason I think that’s distorting is because when you are paying people not to do something, you are implying that they had a legal right to do it,” Freyfogle said. “They’re implicitly promoting an understanding of private property that grossly distorts the rights that landowners ought to have.”

Freyfogle advocates sharp restrictions on landowners’ development rights, with stringent government review to ensure building plans meet society’s needs.

While many would likely consider that notion “outrageous,” Freyfogle says it is rooted in land-use practices once embraced in America and still the norm in other nations around the world.

“Private property is very much a human, social creation – that is to say, the elements of ownership are very much up to us to determine, generation by generation,” Freyfogle said. “It’s not some institution that was given to us by God or some platonic ideal.”

Editor’s note: To contact Freyfogle, call 217-333-8713; e-mail efreyfog@illinois.edu.