Climate Change: Government, Private Property, and Individual Action
| Author | Paul Babie |
| Position | University of Adelaide Law School, Australia |
| Pages | 19-21 |
SUSTAINABLE DEVELOPMENT LAW & POLICY19
INTRODUCTION
Climate change is a private property problem. Some
may react strongly to such a bold claim—after all,
private property is seen as a solution to the crisis, as
illustrated by the current fascination with the “commodifica-
tion”1 and “propertization”2 of carbon through “cap-and-trade”3
schemes.4 Notwithstanding the current fashionability of legisla-
tive responses to climate change, in the last year governments
seem to be backing away from taking bold action.
In late 2009, the United Nations climate talks in Copenha-
gen failed to produce a successor agreement to the Kyoto Proto-
col5—participants opted instead for a weak political agreement.6
Throughout 2010, this compounded the inability of national gov-
ernments, especially those of the major developed nations such
as the United States7 and Australia,8 to mitigate greenhouse gas
(“GHG”) emissions through “cap-and-trade” legislation aimed
at permitting the purchase and sale of rights to emit GHG.9 Gov-
ernments let their initiatives lapse.10 Some more cynical might
say the failure of Copenhagen galvanized the resolve of such
governments to oppose mitigating legislation of any kind.11
Finally, at the end of 2010, the Cancún UN climate talks, rather
than focusing on mitigation through binding political agreement,
issued a set of agreements, a major portion of which aims at
adaptation to the changes wrought by the un-mitigated emission
of GHG.12
As matters currently stand, as of January 1, 2013, the day
Kyoto expires, the world will have no binding limits on GHG.13
For many,14 this fact causes real alarm. And it ought to, for this
governmental failure stands as a depressing indictment of the
effects on people of anthropogenic climate change. Bjørn Lom-
borg, the self-proclaimed “skeptical environmentalist,”15 puts it
this way:
The risks of unchecked global warming are now widely
acknowledged: a rise in sea levels threatening the exis-
tence of some low-lying coastal communities; pres-
sure on freshwater resources, making food production
more difficult in some countries and possibly becom-
ing a source of societal conflict; changing weather pat-
terns providing favorable conditions for the spread of
malaria. To make matters worse, the effects will be felt
most in those parts of the world which are home to the
poorest people who are least able to protect themselves
and who bear the least responsibility for the build-up
of greenhouse gases . . . . Concern has been great, but
humanity has so far done very little that will actually
prevent these outcomes. Carbon emissions have kept
increasing, despite repeated promises of cuts.16
Another way of looking at humanity’s inaction may simply
be the recognition, by governments if not yet by humanity as
a whole, that what is necessary is nothing short of wholesale
change to the dominant concept of private property. This brief
essay aims to explain why private property, touted as recently as
last year as the saviour to the challenge posed by climate change,
may in fact be the source of the problem and why we need to
take individual, personal action rather than wait for governments
to act for us.
WHAT PRIVATE PROPERTY IS
We begin with liberal theory, from which the dominant
contemporary concept of private property emerges.17 Liberal-
ism concerns itself with the establishment and maintenance of
a political and legal order which, among other things, secures
individual freedom in choosing a “life project”—the values and
ends of a preferred way of life.18 In order for life to have mean-
ing, some control over the use of goods and resources is nec-
essary; private property is liberalism’s means of ensuring that
individuals enjoy choice over goods and resources so as to allow
them to fulfill their life project.19
In simple terms, the liberal conception of private property is
a “bundle” of legal relations (or rights) created, conferred, and
enforced by the state (through law) between people in relation
to the control of goods and resources.20 At a minimum, these
rights typically include use, exclusivity, and disposition.21 One
can use one’s car (or, with few exceptions, any other tangible or
intangible good, resource, or item of social wealth), for exam-
ple, to the exclusion of all others, and may dispose of it. The
holder may exercise these rights in any way to satisfy personal
preferences and desires.22 Alternatively, crafting this in a way
that comports with the language of liberal theory—rights are the
shorthand way of saying that individuals enjoy choice about the
control and use of goods and resources in accordance with and
to give meaning to a chosen life project.
CLIMATE CHANGE:
GOVERNMENT, PRIVATE PROPERTY, AND INDIVIDUAL ACTION*
by Paul Babie**
* This is a revised version of Paul Babie, Private Property: the Solution or the
Source of the Problem?, 2 AMSTERDA M L. F., no. 2, 2010 at 17, http://ojs.ubvu.
vu.nl/alf/article/view/124/231.
** University of Adelaide Law School, Australia. Thanks to Joseph William
Singer and Peter Burdon for reading and providing invaluable comments on
earlier versions of this project. Any remaining errors are, of course, entirely my
own responsibility.
WINTER 2011 20
Notice, though, that in this definition, such rights exist only
as a product of relationship between individuals. This is signifi-
cant, for it focuses our attention on the fact that where there is a
right (choice) to do something, there is a corresponding duty (a
lack of choice) to refrain from interfering with the interest pro-
tected by the right.23 Rights would clearly be meaningless if this
were not so. As concerns a particular good or resource, then, the
liberal individual holds choice, while all others (the community,
society) are burdened with a lack of it. C. Edwin Baker sum-
marizes the idea of rights and relationship this way: “[private]
property [i]s a claim that other people ought to accede to the
will of the owner, which can be a person, a group, or some other
entity. A specific property right amounts to the decisionmaking
authority of the holder of that right.”24
Private property, then, is not merely about the control and
use of goods and resources, but also significantly about control-
ling the lives of others.25 Using evocative and graphic language,
Roberto Mangabeira Unger puts it this way:
[t]he right [choice] is a loaded gun that the rightholder
[the holder of choice] may shoot at will in his corner
of town. Outside that corner the other licensed gunmen
may shoot him down. But the give-and-take of com-
munal life and its characteristic concern for the actual
effect of any decision upon the other person are incom-
patible with this view of right . . . .26
Identifying the importance of relationship reveals the fact
that private property and non-property rights overlap; choices
made by those with the former have the potential to create nega-
tive outcomes—consequences, or what economists call “exter-
nalities”—for those with the latter.27 At the highest level of
generality, Unger’s “gunman” is vested with absolute discretion
to “an absolute claim to a divisible portion of social capital[]”
and that “[i]n this zone the rightholder [can] avoid any tangle
of claims to mutual responsibility.”28 The individual revels in
“a zone of unchecked discretionary action that others, whether
private citizens or governmental officials, may not invade.”29
Every legal system acknowledges this problem and, in doing
so, seems to accept that with rights come obligations towards
others.30 The state, through law, creates private property, just
as through that same law (what is more commonly known as
regulation), it is said to mediate the socially contingent bound-
ary between private property and non-property holders. This is,
in fact, the essence of private property—state conferral of self-
serving rights that come with obligations towards others.31
Yet there is something much more disturbing lurking just
below the surface of what appears to be state control aimed
at preventing harmful outcomes like those of climate change.
What is really being conferred by private property is what Dun-
can Kennedy calls the legal ground rules giving “permissions to
injure” others, to cause legalised injury.32 This is insidious, for
“we don’t think of [them] as ground rules at all, by contrast with
ground rules of prohibition. This is Wesley Hohfeld’s insight:
the legal order permits as well as prohibits, in the simple-minded
sense that it could prohibit, but judges and legislators reject
demands from those injured that the injurers be restrained.”33
And they are invisible, in the sense, that
when lawmakers do nothing, they appear to have noth-
ing to do with the outcome. But when one thinks that
many other forms of injury are prohibited, it becomes
clear that inaction is a policy, and that law is respon-
sible for the outcome, at least in the abstract sense that
the law could have made it otherwise . . . . It is clear
that lawmakers could require almost anything. When
they require nothing, it looks as though the law is unin-
volved in the situation, though the legal decision not to
impose a duty is in another sense the cause of the out-
come when one person is allowed to ignore another’s
plight.34
This brings us full circle to the broader liberal theory with
which we began, for the importance of relationship in under-
standing private property reveals an important, yet paradoxical,
dimension of choice. It is simply this: the freedom that liberal-
ism secures to the individual to choose a life project means that
in the course of doing that, the individual also chooses the laws,
relationships, communities, and so forth that constitute the polit-
ical and legal order. In other words, in the province of politics
people choose their contexts (through electing representatives,
who enact laws and appoint judges who interpret those laws),
which in turn defines the scope of one’s rights—choice, deci-
sionmaking authority—and the institutions that confer, protect
and enforce it (bearing in mind the ground rules of permission
as well as the ground rules of prohibition). Individuals as much
choose the regulation of property as they do the control and use
of goods and resources.35
HOW PRIVATE PROPERTY FACILITATES THE
EXTERNALITIES OF CLIMATE CHANGE
When we focus on relationship as central to private prop-
erty and the political-regulatory contexts we choose, we begin to
see something else that was always there, although it was hidden
from our view. The externalities of private property create many
other types of relationship in which the lives of many are con-
trolled by the choices of a few.36 Anthropogenic climate change
is a stark example.
While the science is complex, it is clear enough that humans,
through their choices, produce the GHG that enhance the natu-
ral greenhouse effect, which heats the earth’s surface.37 Among
other effects, anthropogenic climate change results in drought
and desertification, increased extreme weather events, and the
melting of polar ice (especially in the north) and so rising seas
levels.38 We might call this the “climate change relationship.”
Private property, as a concept, facilitates choice (both human
and corporate) about the use of goods and resources in such a
way that emits greenhouse gases.39
Our choices about goods and resources cover the gamut of
our chosen life projects: where we live, what we do there, how
we travel from place to place and so forth. Corporate choices are
equally important, for they structure the range of choice avail-
able to individuals in setting their own agendas, thus giving
SUSTAINABLE DEVELOPMENT LAW & POLICY21
corporations the power to broaden or restrict the meaning of pri-
vate property in the hands of individuals.40 Green energy (solar
or wind power), for instance, remains unavailable to the indi-
vidual consumer if no corporate energy provider is willing to
produce it.41
Externalities do not end at the borders, physical or legal,
of a good or resource; choices occur within a web of relation-
ships, not only legal and social, but also physical and spatial.
Who is affected? Everyone, the world over, is affected, with the
poor and disadvantaged of the developing world disproportion-
ately bearing the brunt of the human consequences of climate
change42—decreasing security, shortages of food, increased
health problems, and greater stress on available water supplies.
Indeed, as Jedediah Purdy argues,
[c]limate change threatens to become, fairly literally,
the externality that ate the world. The last two hundred
years of economic growth have been not just a prefer-
ence-satisfaction machine but an externality machine,
churning out greenhouse gases that cost polluters noth-
ing and disperse through the atmosphere to affect the
whole globe.43
Consider human security. It will decrease both within coun-
tries affected directly by climate change, and in those countries
indirectly affected through the movement of large numbers of
people displaced by the direct effects of climate change in their
own countries.44 In the case of rising sea levels, for instance,
sixty percent of the human population lives within one hun-
dred kilometers of the ocean, with the majority in small- and
medium-sized settlements on land no more than five meters
above sea level.45 Even the modest sea level rises predicted for
these places will result in a massive displacement of “climate”
or “environmental refugees.”46 Private property, by secur-
ing choice about the use of goods and resources to those in the
developed world, makes all of this possible.
CONCLUSION: IS IT THE SOLUTION?
Nonetheless, private property and the commodification
upon which it depends seem to be in vogue at the moment as a
solution to anthropogenic climate change. Creating a proprietary
interest in carbon that can be bought and sold is the answer—is
the political choice, it is claimed and we believe—to the climate
crisis. Is it really? We could just as easily say that the concept
of private property is the primary culprit. Is it wise to entrust
the solution to the concept that put us here? Or might it be more
appropriate, as Mike Hulme suggests, to “see how we can use
the idea of climate change—the matrix of ecological functions,
power relationships, cultural discourses and material flows
that climate change reveals—to rethink how we take forward
our political, social, economic, and personal projects over the
decades to come.”47
Before we pin our hopes on it as a cure-all, we might ask
first whether the liberal concept of private property is ripe for
just such a reappraisal. We can choose, but we must do so with
our eyes open to the reality: that private property and the con-
texts in which we live are in fact our choice, not that of gov-
ernments. We can no longer wait for government to act, with
cap-and-trade schemes or any other form of regulation. At the
very least, it is not enough, and at worst, it will take too long.
Now is the time to act. And only we can take action. In exercis-
ing choice about our context and about goods and resources, we
must take responsibility for ourselves, rather than waiting for
our governments to act for us.48
1 See MARGARET JANE RADIN, CONTESTED COMMODITIES: THE TROUBLE WITH
TRADE IN SEX, CHILDREN, BODY PARTS AND OTHER THINGS 1-16 (1996).
2 See Kevin Gray, Property in Thin Air, 50 CAMBRIDGE L.J. 252, 257-58
(1991).
3 See, e.g., American Clean Energy and Security Act of 2009, H.R. 2454,
111th Cong. (2009). This bill is also referred to by the names of its sponsors,
Congressmen Waxman and Markey.
4 The popular press and media are filled with analysis of such schemes. For
a recent example, see Lexington: A Refreshing Dose of Honesty, ECONOMIST
(Feb. 4, 2010), http://www.economist.com/world/united-states/displaystory.
cfm?story_id=15453166.
5 Kyoto Protocol to the United Nations Framework Convention on Climate
Change, Dec. 11, 1997, 2303 U.N.T.S. 148 (entered into force Feb. 16, 2005),
http://unfccc.int/resource/docs/convkp/kpeng.pdf.
6 United Nations Framework Convention on Climate Change, 15th
Conference of the Parties, Copenhagen, Den. Dec. 7-19, 2009, Copenhagen
Accord, 2/CP.15, in Part Two: Action Taken, U.N. Doc. FCCC/CP/2009/11/
Add.1 (Mar. 30, 2010), http://unfccc.int/resource/docs/2009/cop15/eng/11a01.
pdf; see also BJØRN LOMBORG, SMART SOLUTIONS TO CLIMATE CHANGE: COMPARING
COSTS AND BENEFITS 1 (2010); David King, Editorial, No Cause for Climate De-
spair, NEWSCIENTIST, June 16, 2010, at 3, http://www.newscientist.com/article/
mg20627652.900-david-king-no-cause-for-climate-despair.html (noting that
the Copenhagen talks at least gave the world a goal to avoid global temperature
increases of 2 degrees Celsius); Fred Pearce, Is it Time to Say Goodbye Cool
World?, NEWSCIENTIST, June 15, 2010, at 8, http://www.newscientist.com/article/
mg20627650.401-is-it-time-to-say-goodbye-cool-world.html (discussing the
climate talks in Bonn, Germany). While COP 15 received global attention as an
historic opportunity to produce an internationally legally binding successor to
the Kyoto Protocol for the mitigation of anthropogenic climate change, COP 16,
held from November 29, 2010 through December 10, 2010 in Cancún, Mexico,
received understated coverage and sought modest outcomes, limited largely
to incremental developments concerning multilateral processes for achieving
industrialized country emissions targets and actions to reduce emissions, an
agreement to prevent a gap between the Kyoto Protocol and its successor, clean
development mechanisms to encourage investment in infrastructure aimed at re-
ducing emissions, initiatives to protect the vulnerable from climate change, and
various strategies aimed at adaptation to climate change. The United Nations
Climate Change Conference in Cancun, COP 16 / CMP 6, 29 November–10
December 2010, UNFCCC [hereinafter COP 16 / CMP 6], http://unfccc.int/
meetings/cop_16/items/5571.php (last visited Feb. 25, 2011).
7 See, e.g., Clean Energy Jobs and American Power Act, S. 1733, 111th Cong.
(2009), http://www.govtrack.us/congress/bill.xpd?bill=s111-1733; Carbon
Limits and Energy for America’s Renewal (CLEAR) Act, S. 2877, 111th Cong.
(2009), http://www.govtrack.us/congress/bill.xpd?bill=s111-2877; Clean
Energy Act of 2009, S. 2776, 111th Cong. (2009), http://www.govtrack.us/con-
gress/bill.xpd?bill=s111-2776; Clean Energy Partnerships Act of 2009, S. 2729,
Endnotes: Climate Change: Government, Private Property,
and Individual Action
Endnotes: Climate Change continued on page 77
