By Min Rebecca Yoo
Influenced by the writing of John Locke, who argued that the purpose of the state was to provide for the protection of life, liberty, and property (Locke, 1690), property laws were implemented to regulate the definition, distribution, and use of private property.
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Some environmentalists are critical of how current legislation regarding property rights, especially on land use, is incompatible with the demands of environmental protection. Owners and occupiers of land often have little incentive to partake in environmentally friendly practices and some even exploit the land and its resources as a source of profit (Merrill, 2004). Such actions must be regulated by the government to impose and enforce stricter property laws. Clearly defined environmental laws regarding land use can act as a constitutional provision to guide the actions of individuals towards sustainability through the awareness of the actions they are prohibited from committing and the deterrence of environmental crimes due to potential criminal or civil sanctions. Especially with the world set to reach 1.5°C of climate change by 2040 (IPCC, 2021), there exists an increasing need for swift, decisive, and transformative legislative action toward environmental preservation.
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In order to counterpoise the destructive effects already inflicted on the environment, a reconciliation between property rights and environmental protection is crucial to uphold environmental stewardship. In many cases, the best way to assign environmental responsibilities will be the establishment (or the bolstering) of public-law-based environmental liability statutes in tandem with private-law-based tort liability remaining available ― the two creating a more comprehensive environmental code of conduct for owners and occupiers of land to follow.
The law should assign general conservation responsibilities to owners and occupiers of land such as (i) the duty to not carry out activities that may cause environmental harm without first taking measures to prevent or minimise said harm, (ii) the duty to notify authorities should they observe or commit environmental harm and (iii) the duty to comply with environmental regulations including the payment of compliance costs by those in control or management of the land.
The extensive scale of the environmental problem requires an active, methodical, and efficient government to protect the public interest. Landowners may want to use their land in a way that acquires profit, whether through leasing, agriculture, chemical manufacturing, or deforestation, among others. It is the responsibility of the government to set strict and explicit laws to allow for the guidance of actions, prosecution of violations, and the imposition of appropriate sanctions (such as fines, restitution, or incarceration). Coupled with the granting of increased powers for legislative oversight bodies, these policies can be enforced effectively.
The main purposes of the law include setting a foundation of morality (Raz, 2003) and guidelines of behaviour for its citizens as well as protecting the fundamental rights and liberties of people. But without a safe and clean living environment, people cannot enjoy their right to health, life, clean air, and more. In short, there are no human rights on a dead planet. Environmental protection assigned to owners and occupiers of land through legal responsibility is in the best interest of humanity as it will endeavour to limit pollution and prevent climate change from infringing upon fundamental human rights while allowing the reconciliation of the relationship between humans and nature.
In order to achieve this, the law should set environmental standards that are currently lacking or tighten existing ones, mandate pollution control, prohibit certain activities and cap the emission of certain pollutants to a specified level so that landowners and occupiers have (and understand) their strict legal responsibilities to ensure that their use of land does not cause a public nuisance ― including but not limited to the prevention of toxic gas emissions, contaminant cleanup, chemical safety, resource sustainability, and waste management.
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In addition, statutes enforcing biodiversity conservation efforts on the owners, occupiers, and visitors of the land that serves as a habitat for these species will also contribute to sustainable progress in maintaining and safeguarding an ecological balance.
Most modern environmental law still focuses on human interests as shown in the tort system treating natural objects as legal property so that owners can seek remediation for damage through tort suits. However, it should increasingly recognise the intrinsic value of the natural world regardless of its utility to humans. Establishing a liability regime separate from the tort system to compensate for harm to the environment itself will reflect a greater consideration of the interconnected relationship between humans and the environment. Due to the fact that many parts of the environment such as soil, forests, or rivers also serve as objects of property law, tort law can efficiently remediate some environmental damage through corrective justice. However, some parts of the environment such as the air, endangered species, and wild rivers do not have a specific owner and thus are unable to be protected through tort claims based on lost economic value to the owner. Due to this inadequacy, some argue that the common-law tort system “cannot be relied upon to serve as society’s primary environmental law strategy” (Plater et al., 2004). Public legal liability systems, on the other hand, can help remedy environmental harm and by making the inflictor of harm cover the costs of clean-up, repair, and restoration regardless of whether there is an owner.
While tort law proceedings often require the burden of proof to be met, in that a causal relationship between the defendant’s conduct and the plaintiff’s personal injury must be established, a public-law-focused approach will only have to prove that harm to the environment has been committed to satisfy the imposition of sanctions regardless of whether a right-holder exists. In doing so, the owner or occupier that committed the crime will be held liable and the cost of compensation would cover the costs of restoring the impaired environment and its resources.
The current EU law demonstrates this with the statutory laws imposed by the Contaminant Land Regime (UK Department for Environment, 1990) which adopts a ‘polluter pays’ principle (PPP) (European Court of Auditors, 2021). The PPP affirms that the person responsible for causing the environmental harm should be the one who internalises the environmental costs and is held liable. Strengthening the integration of the PPP into legal systems around the world and establishing an international environmental liability regime in the future can also place accountability on polluters as an international custom.
These examples further support the main argument that there is an indisputable need to assign environmental responsibilities to landowners and occupiers through legal mechanisms of both tort law to keep inflictors of harm accountable in a civil suit and public-law-based environmental statutes to provide to set regulations and impose liability for environmental harm to nature that is not privately owned.
However, the extent to which laws on their own can respond to environmental demands may be limited (despite having the most wide-reaching impact out of other choices), which is why market-based instruments such as financial incentives or disincentives can also be used to favourably influence the behaviour or polluters. By incorporating environmental costs and benefits into taxes, charges, and fees, they can be used alongside laws to be a more flexible way of achieving environmental objectives. A harmonious balance between top-down management as well as market-based approaches can align the interests of the government with the owners/occupiers of land in a more efficient and less contentious way.
In conclusion, a level of state control that will enable the assurance of civil liability in tort cases coupled with the assurance of criminal liability as established by environmental statutes will allow the government to promote a more comprehensive code of conduct to protect the environment with both tort law and statutory law recognising the importance of landowners and occupiers being assigned environmental responsibilities.
Although the prioritisation of conservation efforts requires great effort and investment on the part of the government and its relevant agencies, it is a crucial step to be taken to ameliorate the current environmental state. As the PPP becomes increasingly integrated into legal systems around the world and as polluters undertake the costs of correcting their environmental harm, the burden on public authorities will lessen.
Thus, a reconciliation between property rights and environmental protection can be achieved through the coexistence of private-law-based tort liability and public-law-based environmental liability statutes with the help of market-based instruments to assign environmental responsibilities to owners and occupiers of land.
John Locke, ‘Two Treatises of Government’, 154-55 (1690).
Thomas W. Merrill, ‘Private Property and the Politics of Environmental Protection’, 28 HARV. J. L. & PUB. POL'Y 69 (2004).
‘IPCC: Summary for Policymakers. In: Climate Change 2021’. Cambridge University Press (2021).
Joseph Raz, ‘About Morality and the Nature of Law’, The American Journal of Jurisprudence, Vol 48, 11 (2003).
Zygmunt J. B. Plater et al., ‘Environmental Law and Policy’, 283 (2004).
UK Department for Environment, Food & Rural Affairs, ‘Environmental Protection Act 1990: Part 2A.’, Contaminated Land Statutory Guidance, 41-43 (1990).
European Court of Auditors, ‘The Polluter Pays Principle’, 6 (2021).