Most proposals to deal with global climate change are legislative and administrative, and the major elements of property law are taken as a given. Although the complex problems associated with global warming make a focus on legislative and administrative approaches understandable, property law has an important yet neglected role to play in addressing global warming.
Property law determines how people acquire rights of ownership. It also controls use of land. The reach of these tenets has not kept up, however, with the development of novel technologies for harvesting the sun and the movement of air and water, each of which offers great potential for reducing carbon emissions. Addressing global warming effectively requires generating more power from environmentally friendly resources-solar and wind power and kinetic, wave, and tidal hydroelectric power-to reduce our consumption of coal-generated electric power. Without rules defining who owns these resources and the expectations they may lawfully have with regard to permitted and prohibited use, the widespread expansion and implementation of environmentally friendly technologies will be severely handicapped.
This article will deal with these issues, beginning with the issue of rules for acquiring property rights in natural resources. The article will then discuss land use controls, such as restrictive covenants, and how they can impede the progress of environmentally friendly power sources when such sources are considered aesthetically offensive. Lastly, the article will focus on the question of how property law should deal with uses of land that are inefficient and contribute to global warming. [excerpt]
Gregory Sergienko, Property Law and Climate Change, 22 Nat. Resources & Env't, Winter 2008, at 25, 29.