This is an Article about soil. In consequence, it is also an Article about our relationship to land, and about how that relationship can and must change to confront the many environmental crises facing the United States. Questions about our relationship with the physical environment around us necessarily come to the fore in conversations about soil because of its several identities. It is one of Earth’s most precious resources—the substance responsible for allowing plants to grow, filtering pollutants out of water, providing habitat to countless organisms, sequestering carbon, and providing many other valuable functions. Soil also, however, makes up the top layer of land, or the “portion of the earth’s solid surface distinguishable by boundaries or ownership.”
These kinds of dual identities are not unusual for conversations surrounding natural resources and private property rights. What is notable about soil governance in the United States is the lack of mechanisms to mediate between its identities as resource and property. Soil lacks the more robust statutory framework that resources like air and water have. Instead, the federal law dimension of soil governance offers a top-down, parcel-based approach generally devoid of benchmarks or action-forcing provisions. And the level of government historically vested with land-use planning and management responsibility in the United States—local governments—offers a dimension of soil governance focused much more on property rights and values than on environmental health. This divided governance ignores the interconnected nature of soil. The harms stemming from this fractured attention to soil as a natural resource and all the environmental benefits that it provides have never been clearer. Soil erosion, flooding, decreased agricultural productivity, declining carbon storage, and more can be attributed to declines in the soil resource. Climate change is only exacerbating these issues. Bringing in a commons-oriented perspective as a third dimension of soil governance clarifies the path and lends support to changes in both soil regulation and soil ownership that better account for soil’s interconnected nature.
This Article takes on the question of soil governance as a common resource problem. It is ground-breaking (pun intended) in centering soil— and the biological functions it supports—as a resource in its own right. Using that lens, this Article offers suggestions for both substantive and structural changes to soil governance and private property, centered ultimately on the role of local actors. Overall, this Article is the first of several designed to explore the role of local governments as resource managers and incubators of the kind of environmental and community values that will be needed in the face of the climate crisis. And in this way, it is part of the broader project to articulate the legal dimensions of the huge societal shifts needed to confront the realities of climate change.
Sarah J. Fox, Soil Governance and Private Property, 2024 ULR 1 (2024).