Sharing the Climate by Professor Rashmi Dyal-Chand shines a light on a surprisingly understudied, yet immensely important, aspect of the climate crisis: to a large extent, the climate crisis is all about resources. Whether fertile and livable land, healthy trees, drinkable water or breathable air, the depletion starts with resource management (or, failures thereof).
Property is the conceptual category that allows us to distribute and govern resources. So property law and concepts should be at the forefront of responding to a resource-based crisis, right? As Rashmi Dyal-Chand points out, unfortunately, at the moment, that is not the case.
The key contribution of the article is underscoring the ways in which property law could contribute to the climate discourse. Dyal-Chand calls on scholars and policymakers to examine the role property law currently plays, and the role it can play, in mitigating and adapting to the climate crisis.
This call is two-fold: first, it calls on the broader climate community to examine how property law can be part of the set of solutions offered. Given the crisis is one of resource management, if we are to mitigate the vexing climate issues and imagine a future that preserves the long-term viability of our resources, property must be part of the solution. Property law also addresses an aspect that is generally not covered by other types of climate responses – the relationship between neighbors within the community. It is significant as a response to the crisis for that reason as well.
Second, the article calls on property law scholars to examine how property law can adapt to the reality of a changing climate. “It is imperative for property law,” she underscores, “to develop durable, systemic response to the climate crisis.” This is key to maintaining a viable and vibrant environment, but also is crucial for the utility and durability of property law itself.
On that front, Dyal-Chand suggests an expansion of the law of neighbors, and the establishment of more access-focused regimes. Building on the ability of close-knit communities to work cooperatively, this is essentially an exercise in reimagining rights of access, such that certain activities, which are necessary for climate adaptation and mitigation, could be facilitated rather than prohibited.
This is both normatively and pragmatically significant. The everyday life of landownership, as Dyal-Chand reminds us, is largely premised on separatism, in different forms. Normatively, this is true whether one takes a utilitarian-based stance, or an autonomy-based one. Either way, the core commitment seems to be rooted in the exclusionary, every-person-to-their-own kind of intuition. While this kind of dynamic is suited for some contexts and certain eras, it is ill adapted to a world that is rapidly changing and where resources, generally, cut across more than one plot of land and their impact extends beyond the scope of one particular plot.
Property’s response should be, according to Dyal-Chand, creating a sharing-oriented management regime, specifically between neighbors (broadly understood, also encompassing a wider set of community members). “Sharing”, in this context, doesn’t mean that landowners will lose all control over their land nor the ability to enjoy it. It just means that we could allow simultaneous uses of some bits and particular aspects of resources.
Examples could include allowing a neighbor access to sunlight, wind, or a roof space for the purpose of energy production or for facilitating microgrids; or sharing parking spaces in an effort to reduce paved areas and make more room for green parks. It could also include creating linear drainage canals along the edges of multiple parcels, which could help deal with increasing floodwaters; or creating fire-safety corridors through multiple plots that could help mitigate wildfires or act as escape routes for residents.
This kind of regime would have two important advantages. First, by effectively “pooling” bits of resources that are currently split among landowners, the proposed regime better addresses widespread externalities that impact all neighbors (or the neighborhood). Think, for example, how creating a linear drainage canal, on private lands, can benefit all the residents in times of increased floods.
Second, the proposed regime could mitigate the separatism that currently tends to dominate our landownership dynamics, and instead encourage – or rather demand – a more collaborative and deliberative dynamic. This, in turn, has the potential not only to solve the immediate management problem but to entrench a dynamic that will mitigate separatism moving forward.
Whether framed in terms of easements, zoning provisions or otherwise, the idea is that these kinds of pooled and simultaneous uses would not only facilitate more efficient and more climate-friendly use, but importantly, also bolster the social structures which in themselves are important for successfully responding to the climate crisis.
Basically, it turns out that being kind to thy neighbor is a good idea on many fronts; and who knows, beyond mending our shared fences, it might also help us better adapt to the climate crisis.
