In her important new article, Soil Governance and Private Property, Professor Sarah Fox’s creative writing style captures the importance of soil by referencing the romantic aspects of trees and their connection to people, other trees, and a multitude of living beings including animals, birds, insects, worms, bacteria, and other microorganisms. Professor Fox suggests that local governments approach land-use planning with a goal of balancing soil health and private property ownership in a way that reflects the myriad of interconnections involved in managing and promoting soil health as a common resource.
Her selection of the story of trees to explain the connections between private property uses and environmental impacts on soil is brilliant, compelling, and makes a significant contribution to property, land use, and environmental law. Soil is an important natural resource that has received very little attention in legal scholarship. Legal frameworks have failed to address soil health at all levels of government, perhaps because “we take it for granted” or because it is not as exciting as other natural resources. In her article, Professor Fox identifies avenues of inquiry worthy of intellectual exploration with the goal of shifting the law to recognize soil as a common resource and protect soil health in the face of impacts such as erosion, biodiversity loss, and declining agricultural productivity.
Professor Fox proposes an alternative to viewing soil as private land. She asks that we view soil as a common resource that intersects and impacts individual private parcels. Should the law treat soil as both a resource and property in order to account for the interconnections that can protect soil health? Professor Fox challenges legal scholars, political actors, and lawyers to: [1] wrestle with the impacts of private actions on soil health and, [2] explore the use of government incentives and controls to preserve soil by managing coordination across property lines to avoid a “Tragedy of the Commons.”
The existing status of soil management and the diverse legal frameworks contribute to the soil health crisis in the United States. The fragmented legal governance system from the federal laws of CERCLA, RCRA, CWA, SMCRA, NEPA, and EIS, to state and local government regulations, mainly focuses on controlling the soil health of individual parcels of land. While we have agricultural statutes and agencies protecting soil resources at the federal level, these statutes and regulations do not mandate specific private actions to protect soil and instead offer only information-gathering programs. State and local governments heavily regulate soil management on individual land parcels, but do not take into consideration the interconnections among and between the parcels.
Zoning law, however, does seek to regulate the relationship between individual parcels and the community as a whole through comprehensive planning. This system of local regulation may prove to be effective in zoning for soil health at the local level. In addition, the Standard State Soil Conservation Districts Law (SWCD) authorizes states to create local soil conservation districts to address soil erosion. While these local and state regulatory frameworks acknowledge the relationship between private land use and soil health, they are underutilized. Local land use authorities are perhaps the best poised to take the lead in advancing soil governance to protect and manage soil as a common resource. State and local governments could experiment with different frameworks to tailor soil governance to local conditions. However, state and federal governments must also be actively involved in funding, information sharing, and guidance to help local governments attain their governance potential.
Soil is valuable to human existence through the many benefits it provides such as biomass, water filtering, biological habitats, vegetation growth, and capturing carbon. Its connection with real property ownership, and specifically with private ownership, complicates soil governance, as “[t]here is no dividing line between soil as a resource and soil as property.” (P. 34). Similar to air and water resources, soil impacts extend beyond private ownership boundaries and need to be managed, especially because agricultural uses and the cumulative impacts from smaller individual uses affect the broader ecosystem. Professor Fox’s article engages a fascinating topic and one that has mostly escaped notice over the years.
