Updated: Sep 25
Under common-law jurisdictions, the law – legislative and judiciary counterparts – should impose an inherent positive duty on owners and occupiers of land to exercise property rights in an ecologically sustainable way because it optimally employs the malleability of its legal system to achieve sustainable development goals.
Roots of Environmental Responsibility
As environmental movements have increasingly garnered political influence on a national level and are recognised on international platforms (e.g., the United Nations), sustainable development is indisputably a common interest of society. Defined in 1987 by UN World Commission, sustainability development is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs and without detriment to other peoples." The importance of sustainable development is affirmed across professions.
From an economist’s view, sustainable development is so significant that it is one of the key macroeconomic objectives. The increasing awareness of environmental problems follows with a dilemma: the tragedy of the commons – a problem when individuals act in their own interest which leads to the ultimate depletion of common-pool resources. The main obstacle encountered in resolving this problem is how environmental costs can be measured and offset. Due to human's limited ability in understanding the longitudinal and latitudinal (i.e., across time and space) effects of environmental harm, we are unable to easily implement policies to solve the tragedy of the commons. In response, some economists propose an increase in state regulation, while many economists offer otherwise. A popular alternative introduced by neo-liberal economists is an increase in privatisation as well as management led by users of the resources, a solution pioneered by Elinor Ostrom. According to this line of argument, it may seem reasonable to argue that since the government's power over owners and occupiers of land is limited, so should its dominion-oriented model. Under the model, law – an "essential tool of government's action" – should not be involved in assigning environmental duties. However, regardless of the regulatory agency (whether it is government, private companies, or organisations), a robust legal system is present to hold the dominating agency accountable when it fails to deliver environmental protection due to overlapping priorities or inefficiencies. Hence, the responsibility that the law raises will serve as means for individuals or interest groups to enforce the sustainability principle.
From a legal perspective, environmental protection is closely associated with the fundamental rights of individuals (i.e., right to life and property) under the common law. The most direct case is that individual’s life and public health will be at risk because the ecosystem that humans are in is polluted; for instance, the release of lethal chemicals will lead to injuries (i.e., toxic torts). Secondly, the historic approach to property rights – as a “bundle of sticks” insisted of access rights to certain resources – is counterbalanced by private nuisance and public interest in the environment. The interrelation between the public and private spheres complexes the determination of whether negative or positive obligation should be employed.
Currently, a reactive responsibility for environmental protection is widely adopted on a national scale by using environmental rules as property limitation rules. This method expounds on the inherent tension between property law (within the private law discipline) and environmental law (public law). While property law is associated with the legal rights of ownership of land, environmental law weighs these rights against neighbour owners’ and public interest. One prominent example is a conservation covenant, which limits the neighbour's use of their land in order to protect the covenantee's interest. The covenant is institutionalised (e.g., Queen Elizabeth the Second National Trust Act 1977 in New Zealand) which allows statutory bodies or non-profit organisations to enter an agreement with landowners; thereafter the covenant is also binding on future landowners. Similarly, under National Trust Act 1937, United Kingdom's National Trust can enter conservation easements with landowners.
Despite its wide applicability, it is not the most effective measure in pursuing sustainable development. Not only does this environmental liability put its emphasis on creating a negative duty that interferes with an individual's interest, but more importantly, its prima facie position is that landowner may use their land as they wish without restrictions unless they are limited by common law. To pit government and private parties against each other aggravates the intrinsic contradiction between property law and environmental protection and incentivizes individuals further to maximise their interests. Subsequently, this reactive responsibility is unable to comprehensively cover all the environmental conflicts that may arise within a nation.
Instead, to most effectively advance the sustainability aim, environmental stewardship should be an inherent non-derogable positive obligation on property ownership. Common law countries should utilise their domestic law's "dynamic legal change" through a combination of legislative and judiciary efforts in promoting environmental protection.
Firstly, modification of statutory legislation should be adopted with the mindset of progressively incorporating sustainability consideration into the planning and exercise of the rights to the land. This idea has been experimented within common property resources – here, the owner of the land is government instead of individuals – and proved effective. An example emerging across multiple jurisdictions (e.g., Iceland and New Zealand) is the allocation of commercial fisheries quotas system: the government annually decides on a sustainable level of individual transferrable quotas in certain fisheries which are assigned to fishers. In both Iceland and New Zealand, the quota holder is entitled to a certain proportion of the share of the total allowable catch set by the Ministry (Minister) of Fisheries. Although the quota is not an explicit absolute ownership of harvesting rights, it provides property rights that are derived from its ability to be transferred and divided. Moreover, the United Kingdom’s Countryside and Rights of Way Act 2000 shows how positive obligation can also be achieved within the scope of private property. From the outset, this Act is argued to be a property limitation rule because it gives unlimited power to conservation bodies (i.e., Natural England) to refuse operation consents for "operations likely to damage"; however, different from previous limitation rules, it focuses on encouraging these private landowners to introduce positive conservation management. For instance, the Act compels the conservation body to provide a site management statement, which includes their views of the conservation of the land and guidance for the management of landowners of Sites of Special Scientific Interest. Nonetheless, under the common law system, statutory legislation, despite tackling both common and private property, is only one facet of the solution.
The creation of strong judicial support through case laws is an indispensable part of the positive environmental stewardship responsibility. Case laws fill the gaps and develop the principles in the new statutes by integrating environmental obligations in court’s decisions.
Rather than treating common law and statutory legislation independent of one another, common law rights are incorporated and weighed in saving provisions of environmental statutes. For instance, under New Zealand’s The Resource Management Act 1991 (RMA) Section 23(1), it states that the Act does not remove the need for compliance with relevant principles of common law; the saving provision is being affirmed in Varnier v Vector Energy Ltd . However, one might argue that it encourages common law rights to impede environmental protection as the rights are often raised to protect personal interest. Falkner v. Gisborne District Council is brought by coastal landowners that countered the RMA and asserted that the ancient common law – the right to protect one's land from inland of the sea – should apply to the Crown as well. Nonetheless, Justice Barker justified that the "narrow 19th century preoccupation with proprietary rights [is] out of keeping with the more holistic policy concerns of sustainability and environmentalism popular today". Thus, the Justice declared that RMA, which abrogated the common law rights, was a justifiable policy in response to coastal erosion. In spite of these challenges, they have shown the court's adaptability to changing social values which will help to avoid anomalous results and uphold the common interest of the society.
As judges increasingly integrate an inherent obligation of ecologically-sustainability management to the property rights of the land, a robust common law system is established that can help to protect the common environmental interest. In particular, judges should view property law in a new light: as a web consisted of the environmental concept of property. They should consider the interconnectedness of people and the unique characteristics of their land. In addition, these characteristics should be balanced against the landowner's rights. Demonstrated in Just v. Marinette County , Just (plaintiff) claimed that the County’s enaction of shoreline zoning ordinance, which prohibited the filling of his wetland, constituted a constructive taking. After asserting the importance of the wetland to the purity of water and use of natural resources, the Wisconsin Supreme Court decided that owners had no absolute right “to change the essential natural character of his land” which affected its natural states and injure others’ rights. Therefore, the Court held that the statute was not proven unconstitutional beyond a reasonable doubt.
Moreover, when domestic law is ambiguous, judges can also seek guidance from international law; the principle of sustainability has become an internationally accepted normative principle and is possibly emerging as the status of customary international law. Christopher Weeramantry, a retired judge from the International Court of Justice, suggested using the rich heritage of "global wisdom", such as customary principles, to aid the environmental discretion for lands. Steered by both national and international influences, the judiciary branch will become a significant force to impose an inherent duty on owners and occupiers of land to exercise their property rights in an ecologically sustainable way.
International Limitations: Force Majeure
Nonetheless, the responsibility should not be taken out of context; the effectiveness of the inherent responsibility is built on the premise that there is international peace. Under domestic law, the relationship between the enforcer of the law (i.e., the government) and the owner or occupier of the land is clear and definite. When the government is willing to oversee the law, environmental protection will be most successful. On the other hand, international law lacks a "real" enforcer that will impose the positive duty on all states, which are now the owners of the land on a global scale. Although the United Nations (UN) is the most satisfactory alternative, it does have shortcomings when it comes to holding countries accountable for their environmental damages. For instance, UN lack an enforcement entity that is envisioned under Article 43 as member states failed to provide troops and resources. As a result, when the world faces force majeure events, international (as well as national) law that imposes a positive environmental duty on landowners will be challenged by national security.
Two ongoing events illustrate this conflict: the COVID-19 pandemic and the Ukraine War. For the pandemic, the top concern of all nations is to prevent the spread of the deadly virus. Consequently, the short-term need for biomedical equipment, which overrides environmental protection, leads to a sharp rise in medical waste generation and a long-term detrimental impact on the sustainability efforts. On the other side, the Ukraine War presents a situation where the nation's political interest takes priority. During Russia's invasion, Ukraine had suffered grave environmental impacts: contamination of the sea, destruction of "Ramsar" wetlands, and many more. From these unexpected circumstances, evidence show that the inherent environmental stewardship will be balanced against other interests, such as national security and health management. Pragmatically, the positive responsibility may not always be of a greater importance – especially when calls for environmental protection are swamped by other alarming issues.
Through domestic legal arrangements of legislative and judiciary changes, the integration of an inherent positive environmental obligation to owners and occupiers of land into the common law system fully utilises the jurisdiction’s flexibility. However, one nation’s effort is limited in protecting the environment. Therefore, international cooperation is called for to ensure that every – not only common-law – country upholds the sustainability principle as the basis of human flourishing.