A SKETCH OF ECOLOGICAL PROPERTY: TOWARD A LAW OF BIOGEOCHEMICAL CYCLES.

AuthorSzigeti, Peter D.
  1. Introduction: Ecological Catastrophe and the Lack of an Adequate Legal Response. 43 II. Why Property Law? 48 III. The Centrality and Harmfulness of the Right to Abandon in Property Law. 52 IV. What are Biogeochemical Cycles? An Overview of Global Material Flows 57 A. The Water Cycle. 59 B. The Carbon Cycle 61 C. The Nitrogen Cycle 63 V. Ecological Property in a Cup of Coffee. 66 A. Basic Legal Principles. 65 1. Principle #1: Maintain the Cyclically of All Naturally Existing Biogeochemical Cycles 67 2. Principle #2: Collective Ownership of Biogeochemical Cycles 68 3. Principle #3: Chattels Over Realty, Flows Over Boundaries. 69 4. Principle #4: No New Biogeochemical Cycles. 70 B. The Principle of Responsibility in Ownership 72 1. Principle #5: Limited Alienability and Cyclical Trade 74 C. Violations and Enforcement 76 1. Principle #6: Staggered Collective Ownership. 78 2. Principle #7: Universal Ingredient Labeling (and the Codex Alimentarius) 79 VI. Analogies, Models, and Precursors of Ecological Property 81 A. Analogy #1: Property in Water and Other Flows 81 B. Analogy #2: Extended Producer Responsibility. 83 C. Analogy #3: "Rights by Property": Legal Subjecthood Granted to Nature and Ecosystems 84 VII. Conclusion 85 If water were our chief symbol for property, we might think of property rights--and perhaps other rights--in a quite different way. We might think of rights literally and figuratively as more fluid and less fenced-in; we might think of property as entailing less of the awesome Blackstonian power of exclusion and more of the qualities of flexibility, reasonableness and moderation, attentiveness to others, and cooperative solutions to common problems. Carol M. Rose (1) The highest Excellence is like water. Water, Excellent at being of benefit to the thousands of things, does not contend-- it settles in places everyone else avoids. Yes, it is just about Too. Lao Tzu (2) I. INTRODUCTION: ECOLOGICAL CATASTROPHE AND THE LACK OF AN ADEQUATE LEGAL RESPONSE

    It is almost unnecessary to restate the critical condition the natural environment is currently in. Climate systems are in disequilibrium: (3) "once-in-a-century" cataclysms have become annual events, (4) global sea levels are rising, (5) and species of wildlife are going extinct at rates unprecedented in dozens, of millions of years. (6) Meanwhile oceans and freshwaters alike are being flooded with fertilizers, heavy metals, and plastics. (7) If more than a few pockets of the Earth are to be left habitable, urgent action must be taken by all. Climate scientists are in agreement:

    Ultimately, the transformations necessary to achieve the Stabilized Earth pathway require a fundamental reorientation and restructuring of national and international institutions toward more effective governance at the Earth System level, with a much stronger emphasis on planetary concerns in economic governance, global trade, investments and finance, and technological development. (8) Or, in James Gustave Speth's more dramatic words:

    all we have to do to destroy the planet's climate and biota ... is to keep doing exactly what we are doing today, with no growth in the human population or the world economy... . But, of course, human activities are not holding at current levels--they are accelerating, dramatically. (9)

    The fate of the natural environment (itself nowhere "natural" anymore if natural is thought of as pristine or untouched by humans) (10) is entwined with the fate of the global economy and political power. (11) It is also dependent upon traditional notions of democracy, property, statehood, personhood, and wealth, which all contribute in some way to the crisis. (12) What can we do, what should we do--particularly "we" lawyers, legal academics, policymakers, and political thinkers? Of course, we should all reduce our consumption as much as possible and take every opportunity to push ecologically friendly policies. Even more importantly, we should work on just principles for the necessary redistribution of resources that is occurring due to environmental degradation and develop the principles for the (re)creation of an ecologically friendly economy that will not create further environmental crises in a couple of decades down the line. Make no mistake, we are living in the midst of several interrelated environmental crises--climate change and mass extinction are merely the two most pressing ones--and an integrated solution should be most welcome. (13)

    Developing environmental law without integrating it with other branches of the law will not be enough. Environmental law has certainly proven to be too little to save the Earth so far, (14) due to four major reasons: First, like all centralized administrative laws, environmental law is highly susceptible to industry takeover. (15) Second, even when and where it is efficient, environmental law is still an afterthought to economic concerns, a post-planning regulatory procedure that is a nuisance to developers at best and ineffective box-checking at worst. (16) Third, "[t]he central question of environmental policy is [and has been] 'how much?' How much pollution should we release into the ecosystem? How much timber should we cut from the forests?" (17) The accompanying background assumption is that there is an ideal (or at least ideally efficient) amount of pollution, and that human life without pollution cannot go on. (18) Environmental law therefore aims to minimize pollution but not challenge a system of production built to create waste. Finally, environmental law was designed to affect only industrial players, leaving consumers mostly unregulated and blissfully ignorant of the effects of their actions. (19)

    All of this has to change. An ecologically responsible legal system will have to do much more than regulate the impact of certain industries and ban or limit the emission of certain poisonous materials. "We arguably need a new legal paradigm that must be able to fully respond to the complex physically, reciprocally, and temporally interlinked Earth system." (20) The technicality of environmental law has to be transcended: the basic principles of ecologically responsible governance should be as well-known and well-revered as the basic principles of contracts or constitutional law and just as integrated into everyday life. (21) The assumption of "some pollution is necessary" (22) has to be changed so we can start thinking at least about a zero-emission, zero-pollution, circular economy--the only type of economy that can sustain 7-10 billion people for more than a single century. (23)

    One of the bon-mots of current environmentalist writers is "it is easier to imagine the end of the world than the end of capitalism." (24) There is certainly a stark and frightening chasm in the literature on political responses to the impending ecological crisis. The only scholars to treat the severity of environmental collapse seriously enough are anti-capitalist scholars, who often blame a semi-personified "Capital[ism]" for all the ills of current society and have little attention to address legal problems of exchange and production. (25) Without integration into our current systems of private law, the global and national "carbon budgets" created by scientists are impossible to implement unless we resort to a global system of rationing or a "green dictatorship." (26) On the other end of the spectrum, technocratic writers propose minor modifications to cap-and-trade programs, taxes, or financial incentives as solutions for the apocalypse. (27) In this second group, the assumptions are that ecological collapse will have a minimal effect on social, economic, and political institutions: (28)

    American weather will curdle to such a degree that Tennessee will become an incubator for malaria, yet Wall Street banks and patent lawyers will saunter along as usual. Rising oceans will submerge coastal financial centers beneath several feet of saltwater, yet commodities markets will pay top dollar for Greenlandic uranium. (29) The entire legal system--"economic governance, global trade, investments and finance" (30)--has to be "ecologized" to avoid a dystopic future, which means a revision of political philosophy and constitutional theory as well. This "ecologization" of the law will also serve as a much-needed concretization of green political theory, which is unfortunately often too vague to be of guidance. (31) The starting point for the ecologization of law should be property law. In Part II, this Article will argue property law is the appropriate foundation for an ecological legal system because of its global recognition and decentralized enforcement. Property thus escapes the problems that have plagued tax law, administrative (environmental) law, and public international law, which have all been unsuccessful in halting ecological catastrophes. (32)

    An ecological property law nevertheless has to differ from the current-day common law of property in two key features, as this Article argues in Part III: 1) the right to abandon has to be abolished, and 2) the measure of property should not be arbitrary boundary lines on the ground, but the actual geophysical forces that create and sustain life on Earth--biogeochemical cycles. Part IV provides a primer on three basic biogeochemical cycles, which are in sore need of ecological propertization: the water cycle, the carbon cycle, and the nitrogen cycle.

    Parts V and VT set up a number of basic principles for an ecological law of property to deal with the basic question of how a property regime could function and organize a market economy without allowing for individual or collective abandonment of materials. These basic principles include staggered collective ownership of biogeochemical cycles, limited alienability of waste materials, and the overarching obligation to maintain biogeochemical cycles as cycles. Each Part also applies and illustrates these principles, through the...

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