Considering the ‘Development’ Potential of Property Rights in Response to Environmental Problems

Considering the ‘Development’ Potential of Property Rights in Response to Environmental Problems There has increasingly been a shift in how property rights have been conceived in the context of environmental degradation. While property rights have traditionally focused on the right to exclude others from a particular resource and to provide a basis for the right to exploit certain resources, there has been a shift to a more malleable vision where these rights have developed or widened in response to environmental problems. This article argues that this shift has occurred owing to the needs presented by the ‘heat’ of environmental law, characterised by systemic complexity, scientific uncertainty and resource management. In this sense, the key tussle between property law and environmental law lies in their preoccupations between the notions of ‘exploitation’ and ‘management’, respectively. This article attempts to reconcile this apparent conflict and presents a more cohesive picture between these two bodies of law. It does so by responding to three questions – what, when and how – that is, what ‘property rights’ are; when they are needed or ‘developed’ in the context of environmental law; and, finally, the various forms in which they may be characterised, showing how they deal with the needs presented by environmental law. These various ‘forms’, it is argued, have the capacity to foster environmental protection in diverse ways, while also balancing property law’s promises of the ‘right to exclude and exploit’. In dealing with these questions, this article draws from various jurisdictions to illustrate the malleability of property rights as a site for environmental protection.