Property Rights and Sustainability: The Evolution of Property Rights to Meet Ecological Challenges – Edited by David Grinlinton and Prue Taylor

• Date: 01 July 2011
• DOI: http://doi.org/10.1111/j.1467-9388.2011.00718_1.x
• Author: Anatole Boute
• Published date: 01 July 2011

Book Reviews

Property Rights and

Sustainability: The

Evolution of Property

Rights to Meet Ecological

Challenges, edited by David

Grinlinton and Prue Taylor,

published by Martinus

Nijhoff, 2011, 414pp,

US$192.00, hardback.

To reorganize society towards more

sustainable patterns, States develop

new regulatory structures that may

be at odds with the principles that

govern the traditional capitalist

model. Internalizing environmental

externalities can clash with the

acquired interests and rights of

existing economic players that pre-

viously operated in a legal and

political context that ignored

certain types of environmental deg-

radation. In the European Union,

for instance, the steel producer

Arcelor – an energy intensive

company – challenged the validity

of the EU’s greenhouse gas emis-

sions trading scheme based on the

impact that emission reduction

obligations had on the profitability

of its investments. Arcelor invoked

a violation of its right to property.

Although this claim was unsuccess-

ful (see Judgment of the General

Court of 2 March 2010 in Arcelor v.

Parliament and Council, Case T

16/04, [2010] C 100/35), it illus-

trates the central challenge of envi-

ronmental law: to implement

ambitious solutions to ecological

harm that do not breach protected

rights and fundamental norms. In

particular, this claim raised the

question whether the legal prin-

ciples governing the global eco-

nomic system allow for the

implementation of ambitious envi-

ronmental policies.

A large body of literature has ana-

lyzed the potential conflict between

environmental protection and

trade law. In recent years, legal lit-

erature has also developed on the

interaction between environmental

law and the right to property.

Property Rights and Sustainability

– the eleventh volume of Martinus

Nijhoff’s series on Legal Aspects of

Sustainable Development under

the direction of David Freestone –

contributes to the latter debate. It

aims to analyze how property con-

cepts can be ‘systematically and

carefully rethought...sothat they

cease to empower harmful activi-

ties and instead foster sustainable

human-nature interaction’ (at 5). It

announces a ‘new paradigm for

property rights with maintenance

and protection of ecosystem resil-

ience and integrity at its very core’

(at 5). Arcelor’s claim against the

European emissions trading

scheme illustrates the actuality of

this question.

The starting point of the book is

that the traditional ‘Western’

concept of property is largely

responsible for current environ-

mental damage. Most chapters of

the book build upon the premise

that our utilitarian approach to

property aims to stimulate eco-

nomic wealth creation (‘wealth

maximization’) and is based on the

possibility of unrestrained eco-

nomic growth. Following the

‘bundle of rights’ metaphor of

property, this right entitles the

owner to use, exclude, exercise

dominion and control, and alien-

ate. Property thus primarily

includes rights, not obligations

towards the environment. It values

the instrumental use of nature and

does not recognize the limits of the

ecological system. With environ-

mental regulation, the State aims

to impose respect for these ecologi-

cal limits. However, environmental

considerations remain ‘externali-

ties’. As such, environmental law

‘floats over the surface of property

law’ (at 12). Economic rather than

ecological interests are the priority.

The protection of property there-

fore incentivizes environmental

harm.

Building upon this criticism, the

book argues that a re-

conceptualization of the right to

property is necessary in order to

ensure that property rights

enhance rather than frustrate envi-

ronmental protection objectives. In

this respect, the book proposes to

integrate responsibilities towards

the collective good in the concept

of ‘property’. Property should not

be limited to the exercise of rights,

but should also encompass respect

for the environment as a funda-

mental duty of owners towards the

community and future generations.

Moreover, re-conceptualizing prop-

erty rights to meet environmental

challenges must go in parallel with

a re-definition of the concept of

‘sustainability’. Most chapters of

the book criticize the capitalist

assumption of unrestricted eco-

nomic growth and the anthropo-

centric approach to sustainability.

They contend that the ecological

pillar of the sustainability concept

should not be subordinated to eco-

nomic and social considerations.

To reconcile property rights and

sustainability, the ecological pillar

should be recognized as the

bottom-line and limit of private

rights, economic growth and social

development.

The book contains a foreword by

Judge Christopher Weeramantry,

Review of European Community & International Environmental Law

RECIEL 20 (2) 2011. ISSN 0962 8797

© 2011 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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