Sharing the Climate

Abstract

Property law responds poorly to the lived reality of the climate crisis. In particular, it fails to address the uncontrollable negative externalities endemic to this crisis. Today, we need and share resources from which it would be ineffective and harmful to exclude our neighbors. Yet exclusion remains the cornerstone of much of American property law. In turn, the principle of autonomy—broadly defined to signify privacy, self-sufficiency, and even self-isolation—prioritizes exclusion as its functional embodiment in property law.

This Article develops a climate-crisis-facing property law—one that recognizes the need to manage resources owned both exclusively and in common in such a way as to protect the long-term value and integrity of those resources as well as the infrastructure that enables their continued enjoyment. Focusing particularly on relationships between property-owning neighbors, it develops a concept of deliberative co-management whereby neighbors would have rights to co-manage portions of each other’s property. Deliberative co-management could allow neighbors to create and co-manage spaces for channeling floodwaters in the face of sea level rise and for responding more effectively to wildfires. As importantly, deliberative co-management has the potential to change social relations—built on exclusion, autonomy, and isolation—that current property rules have helped to develop and entrench. By encouraging communication and ultimately trust, deliberative co-management can be a powerful systemic response to the climate crisis.

Keywords: climate crisis, property law, global warming