Crisis and Regulation Archives - Columbia Law Review

Introduction In 2018, the opening vignette of a Bloomberg article titled “The Fighting Has Begun Over Who Owns Land Drowned by Climate Change” described a Louisiana property owner who, in the course of patrolling his partially submerged property with a motorboat, chased a trespassing tourboat down the bayou.[footnote]See Christopher Flavelle, The Fighting Has Begun Over Who Owns Land Drowned by Climate Change, Bloomberg Businessweek (Apr. 25, 2018), https://www.bloomberg.com/news/features/2018-04-25/fight-grows-over-who-owns-real-estate-drowned-by-climate-change [https://perma.cc/66MR-8GQJ].[/footnote] Several years later, headlines such as this have been replaced by increasingly urgent warnings about a “climate-driven housing crisis” in which rising seas are causing “America’s coastal housing market to dive”[footnote]See Christopher Flavelle, Florida Sees Signals of a Climate-Driven Housing Crisis, N.Y. Times (Oct. 12, 2020), https://www.nytimes.com/2020/10/12/climate/home-sales-florida.html (on file with the Columbia Law Review ) (last updated Mar. 2, 2021).[/footnote] mixed with reports of what can only be described as irrationally exuberant bets by purchasers across the globe on real estate that may or may not be habitable in the near future.[footnote]See, e.g., Shawna Kwan, Property Tycoons Ignore Flood Risk on Hong Kong’s Last Frontier, Bloomberg CityLab (Feb. 8, 2021), https://www.bloomberg.com/news/ features/2021-02-08/hong-kong-property-developers-ignore-new-territories-flood-risk [https://perma.cc/LSQ2-LZVM] (describing how Hong Kong developers continue to expand into the New Territories despite the high risk of flooding); Casey Tolan, High Ground, High Prices: How Climate Change Is Speeding Gentrification in Some of America’s Most Flooding-Vulnerable Cities, CNN (Mar. 3, 2021), https://www.cnn.com/interactive/ 2021/03/us/climate-gentrification-cnnphotos-invs/ [https://perma.cc/3VUJ-YU4K] (des- cribing the phenomenon of climate gentrification in which wealthy people move to areas that are less prone to flooding, thereby driving up housing prices).[/footnote] Stories such as these bespeak the ongoing reliance on traditional property rights and expectations in a world rendered much more fragile by climate change. At the same time, they reveal the increasing futility of traditional property rules to protect those rights and expectations. This Article argues that it is imperative for property law to develop durable, systemic responses to the climate crisis. It acknowledges that the climate crisis imposes clear limits on our economic behavior, both as a society and as individuals in a society. We can no longer act on the unfettered belief that our individual acquisition and exploitation of resources will straightforwardly produce social benefits. The externalities we have produced through this behavior have contributed significantly to our current state of crisis. Though lawmakers have modified property rights in moments of crisis,[footnote]See Nestor M. Davidson & Rashmi Dyal-Chand, Property in Crisis, 78 Fordham L. Rev. 1607, 1619–20 (2010).[/footnote] these changes have been temporary and piecemeal, leaving intact the broader structures of ownership and exclusion that have buttressed the American vision of property ownership as a manifestation of autonomy—broadly defined.[footnote]See infra sections I.A–.C.[/footnote] This vision of ownership fails to recognize the lived reality of the climate crisis, and it fails to anticipate the challenge of future such crises. Instead, a property law that is responsive to the climate crisis and that prioritizes the diffusion of this crisis must grapple deeply with the connection between individual ownership and large-scale—indeed systemic—externalities and the harms they produce.[footnote]See infra section I.A (discussing the negative externalities produced by the climate crisis, including wildfires and their consequences such as reduced air quality; droughts and their consequences for water quality; sea level rise and its consequences such as flooding and land loss; heat waves; and innumerable other effects).[/footnote] It must provide mechanisms for recognizing and managing these harms. Because individual property ownership contributes significantly to the climate crisis,[footnote]Eric Biber, Law in the Anthropocene Epoch, 106 Geo. L.J. 1, 47–48 (2017) (noting that individual property ownership is an ineffective resource management tool because it fails to take account of the impacts individual property owners’ decisions have beyond their property line); Robert H. Cutting, “One Man’s Ceilin’ is Another Man’s Floor”: Property Rights as the Double-Edged Sword, 31 Env’t L. 819, 819 (2001) (describing how courts and legislatures have defined property rights in terms of private boundaries rather than property rights held by a collectively affected group).[/footnote] climate response must address individual ownership. Such a response must operate at the level of neighbors who own and control property—and who produce positive and negative externalities. This Article argues that property law should incorporate principles of deliberation and co-management by which neighbors would share management of resources that are individually owned but that contribute to the common enjoyment of a shared infrastructure. By defining a space for sharing information as well as management responsibilities among neighbors, the Article provides a pragmatic means for addressing widespread externalities. It also defines a literal and figurative space for developing trust and empathy: Neighbors who co-manage resources that they each need must see each other’s perspectives and needs. In developing the concept of deliberative co-management, the Article relies on analyses undertaken by property scholars who have articulated the importance of defining more space for property law to operate between the two archetypes of absolute dominion and the commons.[footnote]See Gregory S. Alexander & Eduardo M. Peñalver, Community and Property: Properties of Community, 10 Theoretical Inquiries L. 127, 129 (2009) (offering a property law theory “based on an ontological conception of community that views the individual and community as mutually dependent”); Gregory S. Alexander, Governance Property, 160 U. Pa. L. Rev. 1853, 1858 (2012) [hereinafter Alexander, Governance Property] (arguing that governance property is the dominant form of property ownership today, and is defined by multiple people sharing property rights under rules of internal governance, as opposed to individual exclusive ownership or common ownership); Hanoch Dagan & Michael A. Heller, The Liberal Commons, 110 Yale L.J. 549, 553 (2001) (describing the liberal commons as a “type of ownership distinct from both private and commons property, but drawing elements from each”); Eduardo M. Peñalver, Property as Entrance, 91 Va. L. Rev. 1889, 1894 (2005) [hereinafter Peñalver, Property as Entrance] (proposing “a different conception of the means by which property mediates between the individual and the com- munity: property as entrance”); Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1297 (1996) (arguing that the ongoing problem of racial discrimination by retail stores could be addressed by “[a]dop- ting a general doctrine that requires all businesses open to the public to serve the public”).[/footnote] Some of these scholars have argued, for example, that property law must expand the spectrum by developing new models for commons relationships.[footnote]Hanoch Dagan and Michael Heller in particular have imagined more space for commons resource management. See Dagan & Heller, supra note 8, at 552–53.[/footnote] While acknowledging the importance of doing so, this Article contributes to the conversation by expanding the part of the spectrum inhabited by individual property-owning neighbors. By encouraging communication, empathy, and ultimately trust, deliberative co-management can be a powerful systemic response to a range of crises. Relationships among neighbors may initially seem marginal to the urgent challenge of addressing crises, and to some (meaningful) extent they are marginal—at least where emergency crisis response and management is concerned. Even beyond the short term, crisis-facing law reform must include the development of environmental laws, wage and labor policies, family and education policies, antidiscrimination laws, and tort rules (among many other rules, laws, and policies) that prioritize stability and reduce the vulnerabilities exacerbated by the climate crisis. Broader law reform within and well beyond property law is crucial. Nonetheless, this Article argues that reimagining neighborly relations can ultimately work a deep systemic change in and beyond property law. Today, rights among neighbors are governed largely by rules of exclusion that serve as legal manifestations of the deeply engrained value of autonomy.[footnote]See infra section I.B (discussing exclusion in property law and its implications for resource and environmental management).[/footnote] Exclusion serves as the means by which individuals can preserve and protect their own privacy and self-sufficiency.[footnote]See infra section I.C.[/footnote] These exclusionary rules, however, pay scant attention to the externalities that neighbors create when those externalities contribute to systemic crises.[footnote]See infra section I.A.[/footnote] These same basic rules of exclusion govern the rights of power companies, carmakers, and agricultural enterprises in their acquisition of property rights and the externalities they produce.[footnote]See infra section I.A.[/footnote] It remains absolutely essential that policymaking at the national and international levels targets the extraordinary power of elite players who have contributed disproportionately to crises. Without such interventions, the climate crisis, which has reached existential proportions, cannot be managed. Indeed, without such interventions, the property reforms proposed here will be meaningless. The question for this Article is how to develop a systemic response within the field of property law that attends to the smaller players as well, while creating space and complementarity for such regulatory interventions. At issue today is the basic question of the ongoing viability of the particular model of ownership that American property law recognizes. By proposing reforms to that model, this Article demonstrates that individual neighbors can contribute to managing crisis. Such a contribution can be rhetorically forceful—and also pragmatically valuable, as this Article demonstrates by using two examples as proving grounds. Not least of all, this mechanism can serve as a means of democratizing, expanding, and systematizing our responses to the climate crisis. More ambitiously, it can provide a regulatory foundation for a crisis-facing vision of autonomy that protects values such as privacy while creating space for the development of empathy and trust. This Article begins in Part I by examining how the climate crisis challenges traditional property norms and doctrines. It argues that a core characteristic of the crisis is the proliferation of uncontrollable negative externalities. Such externalities pose both an operational and a rhetorical challenge to property rules that prioritize the right of exclusion anchored by norms of autonomy. Parts II and III follow this examination by considering the range of substantive and procedural devices that can serve as foundations for developing a more robust, crisis-facing property law. Part III also surveys law reform and policy measures that could enhance these devices and the unique role of local governments in facilitating their use. Part IV then builds on this foundation by developing the concept of deliberative co-management, a device for involving individual property-owning neighbors in proactively responding to the climate crisis. In so doing, Part IV considers the values that autonomy serves in times of crisis, and the extent to which it is necessary to revise our understanding of exclusion as a manifestation of a more crisis-facing autonomy. Part V examines the viability of neighborly deliberation in addressing two contemporary climate-induced challenges. The first challenge is the increasingly constant problem of wildfire response in the western United States. The second challenge concerns the management of floodwaters in the face of rising sea levels. Finally, the conclusion reflects briefly on the broader utility of deliberative co-management in responding to a range of crises. Thus far, property law has been a great deal less relevant than it ought to be in responding to our new age of crisis.[footnote]A little over a decade ago, Nestor Davidson and I published an article in the wake of the Great Recession hypothesizing that while incremental legal development is the norm in property law, crises can force abrupt changes in rules and norms. See Davidson & Dyal-Chand, supra note 4, at 1637 (describing the effect of crises on traditional property norms). In the years that followed, there was a brief period of significant innovation in property rules and then a reversion to many of the pre-recession rules and norms. This pattern manifests with other crises also, as is evidenced by legal developments since John Lovett’s article on the impact of Hurricane Katrina. John A. Lovett, Property and Radically Changed Circumstances, 74 Tenn. L. Rev. 463 (2007). This Article builds a normative argument on the descriptive foundation that Davidson and I laid, contending that we now need a property law for a relatively permanent state of crisis.[/footnote] This Article calls for updating property law in light of our new normal.