THE CONTINUING RELEVANCE OF COMMON LAW PROPERTY RIGHTS AND REMEDIES IN ADDRESSING ENVIRONMENTAL CHALLENGES.

• Author: Grinlinton, David

Environmental protection and natural resources management is today dominated by legislative measures and administrative procedures. Enforcement and penalty regimes for environmental damage and the management of natural resources are all highly regulated. Nevertheless, there remains the oft-neglected realm of common law rules and procedures available to individuals and public interest groups, and indeed government, as alternate or supplementary mechanisms to enforce rights and obligations, to guide the implementation and interpretation of environmental regulation, and to provide new avenues for addressing environmental challenges.

The common law, particularly in the areas of tort and property, has demonstrated remarkable adaptability in addressing novel environmental threats and in innovating to protect environmental values and incentivize ecologically-sustainable development of natural resources. This article is intended to provide a review of the historical and current contribution of the common law, focusing particularly on property law concepts and property-related torts, and to explore the future potential of those mechanisms in contributing to environmental protection and environmentally-sustainable development. The article draws on cases and developments in a number of similar common law jurisdictions, including Canada, the United Kingdom, the United States, Australia, and New Zealand.

De nos jours, la protection de l'environnement et la gestion des ressources naturelles est dominee par des mesures legislatives et des procedures administratives. Les regimes d'application de la loi et de penalites pour les dommages environnementaux et la gestion de ressources naturelles sont hautement reglementees. Neanmoins, les regles et procedures de common law disponibles aux individus et groupes d'interet public, ainsi qu'au gouvernement, sont souvent negligees comme mecanismes alternatifs ou supplementaires pour faire valoir les droits et obligations, guider la mise en oeuvre et l'interpretation de regles environnementales, et suggerer de nouvelles avenues pour repondre aux defis environnementaux.

La common law, particulierement dans les domaines des obligations extra-contractuelles et du droit des biens, a demontre une adaptabilite remarquable pour repondre a de nouvelles menaces environnementales et innover pour proteger les valeurs environnementales et promouvoir le developpement durable et ecologique des ressources naturelles. Cet article cherche a reviser la contribution historique et actuelle de la common law, en mettant un accent particulier sur les concepts de droit des biens et des obligations extra-contractuelles relies a la propriete, ainsi qu'a explorer le potentiel futur de ces mecanismes pour promouvoir la protection de l'environnement et le developpement durable. Il se basera sur des arrets et developpements dans plusieurs juridictions de common law similaires, incluant le Canada, le Royaume-Uni, les Etats-Unis. l'Australie et la Nouvelle-Zelande.

Introduction I. Speed Bumps and Roadblocks in Utilizing the Common Law to Address Environmental Challenges A. Interests and Interest Groups B. Rights, Obligations, and Justiciability C. The Issue of Pre-emption and Displacement D. Standing, Costs, and Other Harriers E. Class Actions II. The Interrelationship of Property, Contract, and Tort in Addressing Environmental Challenges A. Property Rights and Contract B. The Supportive Role of the Law of Torts 1. Trespass to Land 2. Nuisance 3. Negligence Causing Property Damage 4. Strict Liability: Rylands v. Fletcher 5. The Doctrine of Waste III. The Current Utility and Future Potential of Property Law in Addressing Environmental Challenges A. The Nature of Property in Land and Natural Resources B. The Usefulness of Traditional Property Rights in Environmental Governance C. Legislative and Administrative Measures Affecting Property Rights D. Recent Innovations in I Wising Property Rights to Address Environmental Challenges 1. Conservation Covenants and Easements 2. Sustainable Fisheries Management: Quota Management Schemes 3. Promoting Renewable Energy: Feed-in Tariffs 4. Tradeable Property Rights in Carbon Emissions: Emission Trading Units 5. Protecting Indigenous Resource Uses E. The Public Trust Doctrine and the Protection of Public Property IV. The Argument for an Inherent Duty to Exercise Property Rights in an Ecologically-Sustainable Manner Conclusion Introduction

We must rely upon [the common law] to fill the gaps in legislation, to develop the principles introduced by legislation, and to interpret them. (1) The time should be long past when statute law and common law were seen as occupying different planes. Decision makers, including planning authorities and the Court on judicial review, must consider what construction of the legislation and what development of the common law will avoid anomaly and provide a sensible result. (2) Environmental protection and the management of natural resources is today dominated by regulation and administrative procedures. In most jurisdictions, legislation covers enforcement and penalty regimes for environmental damage (including marine and atmospheric pollution, and the allocation of rights in land and water) and the management of natural resources (including minerals, fisheries, and forestry).

Neo-liberal economic policies have encouraged increased private access to, or control of, state-owned natural resources, either by direct allocation or through "public-private" partnerships. Mining and energy development, water allocation, the provision of infrastructure services, and other industrial development are examples of the growing dominance of the private sector in such activities. The rights and obligations of those agencies and corporations, particularly with respect to resource use and the management of environmental externalities, are often closely defined in environmental planning and natural resource regulation, and sometimes override common law rights and obligations. The agencies charged with regulating matters such as the depletion rates of resources and conditions for access and protection of the environment often struggle to deliver due to a lack of financial, legal, or technical resources, conflicting economic priorities, inefficiencies, or a combination of these issues. Nevertheless, a strong body of underlying common law rules and procedures remains relevant to environmental protection, resource use, and the control of administrative action. These rules and principles are sometimes expressly preserved by the regulatory regime, (3) and at other times are overridden or partially displaced by it.

Where not expressly excluded or implicitly overridden by legislation, common law rules and principles--particularly in the areas of property law and property-related torts--remain available to individuals or interest groups, and indeed government, as alternate or supplementary mechanisms to enforce rights and obligations. (4) Such principles can guide the implementation and interpretation of regulation, fill gaps in regulatory regimes, and provide alternative avenues and new innovations to protect environmental values and incentivize sustainable development of natural resources.

This article has two main themes. First, it argues that property law concepts and property-related torts have great potential for addressing environmental challenges. Areas of application include protecting private and public land from ecological degradation, encouraging more sustainable use of natural resources on and under land, and addressing climatechange matters. Second, the article makes the case that property ownership rights are dynamic under the common law and may be reconceptualized to incorporate an inherent obligation to use land and natural resources in an ecologically-sustainable way for the benefit of present and future generations.

In Part I, the article will review interests, rights and obligations relevant to environmental and natural resource issues, and the challenges of expressing them through the mechanisms of the common law. In Part II, the interrelationship of property law, contract law, and the law of torts will be briefly analyzed. This discussion will survey property-related torts that support and assist in the enforcement of property rights. Part III will discuss the current utility and future potential of existing property law concepts for protecting environmental values and applying sustainability principles to natural-resource development. Finally, Part IV will make the case for an inherent duty arising as an incident of ownership to use private land and natural resources in an ecologically-sustainable way for the benefit of present and future generations. The article will draw on cases and developments in a number of similar common law jurisdictions, including Canada, the United Kingdom, the United States, Australia, and New Zealand.

1. Speed Bumps arid Roadblocks in Utilizing the Common Law to Address Environmental Challenges

   There are many obstacles to utilizing the common law to protect private property and public lands against environmental damage and the unsustainable exploitation of resources. David Boyd has summarized these barriers as including "a historical bias toward private rather than public interests, the absence of constitutional environmental rights, a lack of access to the courts, the high costs of litigation, judicial deference to government decision makers, and low penalties for environmental offences." (5) To engage common law remedies, there must be legally-recognized interests that have been, or will be, affected by the actions of others (Part I-A), and these issues must be justiciable in a court of law (Part I-B). As Douglas Fisher notes, "[F]or there to be a remedy to protect a right, three requirements must always be satisfied: there must be a justiciable issue; there must be a person with the capacity to seek a remedy; and...