A Sketch of Ecological Property: Toward a Law of Biogeochemical Cycles

Abstract

We are already seeing the combined effects of a global bundle of ecological catastrophes: not only climate change, but also ocean acidification, mass extinctions, habitat losses, and different types of
chemical pollution. Legal adaptation to the unfolding ecological catastrophes has so far been public law–focused: mostly international law and administrative/environmental law. We can now say that leaving ecological adaptation to domestic and international public law has not brought the required results, and it is time to “ecologize” property law at the very least. But how can this be done?

The way to make property law ecologically responsive is to change the basic building blocks of property rights. Instead of imaginary containers made up of invisible lines on the ground, property would be maintained and calculated as shares of the basic biogeochemical cycles that sustain all life on Earth (the carbon cycle, the water cycle, the nitrogen cycle). The first principles of property
should be the collective responsibility to maintain existing biogeochemical cycles as cycles, and not create new poisonous cycles such as the dioxin cycle, the methylmercury cycle, or the microplastics cycle. Further basic principles would include limited alienability, cyclical trade, and staggered ownership of resources. These principles would both make property ecologically responsive and maintain it as a workable system of entitlements and free-market exchanges. Such a system is not only possible, but also has strong examples and antecedents within the common law as well as statutory and international regulatory systems.

Keywords: Property Law, Property, Environmental Law, Green Legal Theory, Green Political Theory, Environmental Legal Theory, Environmental Political Theory, Ecology Law