Wasting the Planet: What a Storied Doctrine of Property Brings to Bear on Environmental Law and Climate Change

Abstract

To many, sustainability is nothing more than another legally ineffectual buzz word manufactured by the modern environmental movement. However, such a narrow view of the concept ignores a tremendous amount of historical precedent and jurisprudence underlying it. Specifically, the doctrine of waste in Anglo-American property law has long been a vehicle for those with an interest in the future to restrict resource-depleting activities in the present, rendering it the manifestation of sustainability as a concrete legal obligation. It is through this doctrine, then, that the rich concept of sustainability as it applies to climate change policymaking can be best understood. The early history and development of the doctrine of waste in England and the United States, as well as the philosophical discourse surrounding equitable obligations to future generations, help to provide much-needed non-partisan legal and moral grounding for environmental policymaking. Specifically, the traditional American and English iterations of the waste doctrine provide a natural and tested tool for fashioning sustainability rules on a local scale. The age-old question of what precisely must be left to remaindermen is directly analogous to the modern questions concerning sustainable development and depletion of non-renewable resources. For this reason, the tests and rules applied in the courts of the early United States and England have a particularly useful and novel application to the modern policy discussion. Yet, an even deeper level of analytical significance exists because the choice between the extreme American and English versions of the waste doctrine maps onto the debate between the concepts of weak and strong sustainability. Through examination of the early cases and resultant rules in these two common law jurisdictions, this work provides a policy analysis tool and a recommended general course of action for environmental policymakers.