598 LEGAL ASPECTS OF THE ENVIRONMENT
a certain extent, can be considered a chronicle of wars and
revolutions fought over the ownership and utilization of land
and natural resources.
The Constitution of the United States provides that the
rights not explicitly given by the people of the United States
to the federal government are retained by the people of the
United States, individually, and as collectively assembled in
the several states.
The enumeration of the Constitution, of certain rights,
shall not be constructed to deny or disparage others retained by
the people ( United States Constitution, Ninth Amendment).
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people. ( United States
Constitution, Tenth Amendment).
As the individual state constitutions were formulated,
the rights of individual property owners were strengthened,
but at no time did the sovereign people of the United States
relinquish the ultimate right to determine the highest and
best use of the land and natural resources subject to the juris-
diction of the United States. The justification for any legal
restriction on the private use of land or natural resources is
rooted in this concept of sovereignty in the people.
According to the report commissioned by the Council on
Environmental Quality as a preparation for consideration of
a National Land Use Policy Act,This country is in the midst of a revolution in the way we
regulate the use of our land. It is a peaceful revolution...a
quiet revolution...
The ancien regime being overthrown is the feudal system
under which the entire pattern of land development has been
controlled by thousands of individual local governments,
each seeking to maximize its tax base and minimize its social
problems, and caring less what happens to all the others.And if we are to live in harmony with that which has been
given to us from preceding generations, and from the earth
before mankind appeared, we must make certain assump-
tions with respect to every accessible parcel of real property
and every natural resource capable of exploitation.1) The area of resource is vulnerable.
2) Development, exploitation or utilization of some
kind is inevitable.
3) The highest and best use of the land or resource
as an element of human ecology must be
accommodated.
4) Development must be consistent with natural eco-
logical constraints.
5) Planned achievement of the highest and best use
of land and resources is more profitable to man-
kind than unplanned development.
6) The police power of the state, the ultimate sov-
ereignty of the people, and the maintenance of
private property concepts are compatible and can
result in the harmonious, beneficial development
of land and resources.Recognizing the limited availability of land itself and the
place of land as the basic capital asset of civilization, land
use historically has been limited by executive, legislative and
judicial process.
An early example of land use legislation—zoning—has
been upheld by the courts on the grounds that it represents
action by an individual community to assure the highest
and best use of limited resources for the greatest number
of people without undue infringement upon the rights of
individuals.
Zoning is not just an expansion of the common law of
nuisance. It seeks to achieve much more than the removal of
obnoxious gases and unsightly uses. Underlying the entire
concept of zoning is the assumption that zoning can be a vital
tool for maintaining a civilized form of existence only if we
employ the insights and the learning of the philosopher, the
city planner, the economist, the sociologist, the public health
expert and also the other professions concerned with urban
problems...
This fundamental conception of zoning has been present
from its inception. The almost universal, statutory requirement
that zoning conform to a “well-considered plan” or “compre-
hensive plan” is a reflection of that view. [See Standard State
Zoning Enabling Act, US Dept of Commerce (1926).] The
thought behind the requirement is that consideration must be
given to needs of the community as a whole. In exercising their
zoning powers, the local authorities must act for the benefit
of the community as a whole following a common, deliber-
ate consideration of the alternatives, and not because of the
whims of either an articulate minority or even majority in the
community... Rather, the comprehensive plan is the essence
of zoning. Without it, there can be no rational allocation of
land use. It is the insurance that the public welfare is being
served and that zoning does not become nothing more than
just a Gallup poll [Udell v. Hass (1968), 21 NY2d 463, NE2d
897, 288 NYS2d 888].
The key to successful land use and resource utilization
legislation is the community determination of the high-
est and best use of land and resources in terms of intrinsic
suitability and naturally imposed constraints. Of necessity
this must be done by a team of individuals trained in the
several disciplines necessary to define the environmental
parameters of a Regional Ecological System. The com-
munity itself, particularly its people, constitute elements
of that regional ecological system just as surely as topog-
raphy, hydrology, and climate. One of the most significant
contributions of environmental litigation to the development
of Anglo-American jurisprudence has been the broadening
of the concept of “expert witness” to include an individual
member of a multidiscipline scientific team testifying about
the work of the entire team even though the individual sci-
entist may not have performed the work testified about per-
sonally. Environmental litigation, particularly that involving
such environmental toxicants as DDT and radionuclides
has led to legal acceptance of the “environmental scientist”
who is permitted to testify generally, upon a showing, to the
satisfaction of the Court, of demonstrated competence in
some recognized scientific discipline together with regularC012_001_r03.indd 598C012_001_r03.indd 598 11/18/2005 10:33:19 AM11/18/2005 10:33:19 AM