Waste and the Governance of Private and Public Property

Abstract

Common law waste doctrine is often overlooked as antiquated and irrelevant to modern law as a result of contract, corporate law, trust and estate planning, and public law. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just an historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, the theoretical principles underpinning waste doctrine provide a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate the old waste cases in multiple fields of property and natural resources law to make novel connections across these fields and demonstrate the doctrine’s continuing relevance for contemporary lawyers, legal theorists, and environmental advocates. The Article is unique in its articulation of a universal “waste principle” and its examination of how this principle facilitates communication and cooperative self-governance by and among owners of common property. It suggests that underenforcement of civil and administrative waste law in the context of common pool natural resources contributes to failures in modern law to respond to pressing environmental challenges.

Keywords: common law, climate change, environmental law, commons, property law, governance, waste