Property Theory, Land Use Law, and Climate Change

Abstract

We use rules to decide what to do with scarce resources. Questions about rules matter insofar as we live primarily on the surface of the earth, relying on each other and non-human entities for food, habitation, and other essential goods and services. I argue over three separate but related papers that theories of property rules and other environmental management strategies sourced from normative ethics, economics, and political theory and their applications must engage with the natural sciences. By abstracting from biology and ecology in particular, these theories will fail to capture promising solutions for our most pressing environmental problems to the detriment of the present and future generations they are meant to serve. The first chapter presents an interpretation of John Locke’s labor-based theory of property rights in the broader context of Locke’s moral philosophy and scientific empiricism. I argue that contrary to conventional libertarian and utilitarian interpretations, Lockean property theory actually prescribes weak substantive prescriptions for the content of property rights but strong normative and epistemic constraints on property transitions in order to deal with the novel social inequities imposed by shifting resource pressures. The second chapter presents a qualified defense for the use of carbon offsets in public and private climate policy, contrary to the blanket rejection of their use among philosophers and environmental law scholars based on their inadequacy in mitigating climate change. I reframe the normative challenge of climate change as an integration of mitigation and adaptation—climate resilience—rather than the narrower goal of climate mitigation and explain how these newfangled carbon rights can be reappropriated for this broader goal. The third chapter argues that diversified resource use offers a missing response to the tragedy of the commons. By abstracting from the ecosystem properties of natural resources, tragedy of the commons points toward a narrow set of institutional solutions focused on use restriction and exclusion. I show how this missing response might instead recommend application of a nondiscrimination rule for urban zoning regulations and farm subsidies in order to encourage agroecological diversification.