Marquette Law Review
Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of sociallyoriented property theory as they are represented in the analytical framework of doctrines such as social utility and (2) advance a sustainable theory of property whose usefulness is demonstrated by that historical examination.
From a common law model of property based on near complete control by private landowners, property theory evolved to a model of viewing property as a vehicle for managing the competing interests of the individual owner and the larger society. From this model of competing interests, modern property theory weighed in on the side of society, reframing property interests largely in terms of the community and social relationships. I argue that the social relations and community approaches as they have developed in the case law have environmentally failed us.
Community-based concepts have permeated the common law of torts and property, nudged into statutes, and undermined and eroded the protections that had been available. This erosion emerged from ostensibly social concepts, such as social utility, that were so neutral and malleable that they became entangled with a norm of industrial productivity. Having developed that association, they proliferated through property and tort law, insulating defendants.
To address climate change, we need strong federal environmental regulation, coupled with local access to effective common law claims as a backup and safety net. Both of these must have a foundation on property's key true social utility, which is human survival.
We cannot rely on the paltry and inaccurate framework of private owner against society as our social model of property, but instead we must give community-based concepts like social utility a true normative meaning, centered on sustainability and with land as the unique, finite, and foundational resource.
Jill M. Fraley, Climate Change, Sustainability, and the Failure of Modern Property Theory, 104 Marq. L. Rev. 93 (2020).