E Lees, ‘Property In The Anthropocene’

ABSTRACT
Intergenerational justice, community interests, and environmental protection are all goals sought through the imposition of the duties of stewardship onto owners of land. But such duties, when imposed by law, require justification beyond the morality of maintaining and preserving land in a good condition for its present and future use. The potential for sanction imposed by the state means that stewardship duties, if they are to be justified, must be grounded in established principles of justified legal intervention. Of those, the most convincing is, and always has been, the harm principle: intervention is justified where a rule prevents one person from harming another. This test is a challenge for duties of stewardship, where the focus is on preserving one’s own land for the benefit of future generations; who is harmed by a failure to comply? This Article explains that the harm in such a breach of duty lies in the erosion of the collective interest which cements the community of land owners and users, a collective to which the relevant owner of land herself belongs. The community is justified in imposing sanction for breach of that rule, not because of any environmental damage per se, but in order to ensure the continued and ongoing existence of the group. In this way, stewardship should be seen not as a rule arising from environmental ethics, but as a coordination rule, justified by the role it plays in maintaining the collective, and as such, stewardship thus inheres in private property. The two are not dichotomous, but inextricable.

E Lees, Property In The Anthropocene, 43 William and Mary Environmental Law and Policy Review 541 (2019).

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