Friday, February 3, 2012
Holly Doremus (Berkeley) has posted Climate Change and the Evolution of Property Rights, University of California Irvine Law Review, Vol. 1 (2012). The abstract:
Climate change will unsettle expectations about both land and water. Those changes will reduce the extent to which existing resource allocations effectively serve societal interests. In the United States, we typically rely on market transactions to adjust property allocations as societal needs and interests change. Markets, however, will not adequately protect the collective, as opposed to the private, interests climate change will put at risk. Changes to underlying property rules will be needed if those interests are to be sustained.
Because current property rules stand in the way of efficient and effective adaptation to climate change, evolution of property law is an important aspect of adaptation. But because property rules are especially sticky, the needed changes will not come easily. Federal courts must play the keystone role because they control the interpretation of key constitutional doctrines. The chief legal impediment to climate adaptation at the moment is federal court resistance to changes in property rules. If that resistance can be softened, state courts and legislatures can, and likely will, make needed adjustments. Federal courts should be careful not to stand in the way of such adjustments, although they also have a role to play in ensuring that the costs of change are fairly distributed.