Document Type

Article

Publication Date

2014

Keywords

property law, property theory, law and economics, natural resources law, environmental law, water law, land use law, wetlands, law and philosophy

Abstract

It may be a bad idea to waste resources, but is it illegal? Legally speaking, what does “waste” even mean? Though the concept may appear completely subjective, this Article builds a framework for understanding how the law identifies and addresses waste.

Drawing upon property and natural resource doctrines, the Article finds that the law selects from a menu of five specific, and sometimes competing, societal values to define waste. The values are: 1) economic efficiency, 2) human flourishing, 3) concern for future generations, 4) stability and consistency, and 5) ecological concerns. The law recognizes waste in terms of one or a combination of these values.

After identifying waste, the law seeks to eliminate it via targeted anti-waste provisions, which follow one of three approaches. First, “usage-veto” measures empower selected parties to halt perceived wasteful changes to resource uses. Second, “market-facilitating” measures prevent economic waste by encouraging and correcting markets. Third, “sustainability” measures proscribe wasteful overconsumption of resources fundamental to human and ecosystem flourishing.

Through this framework, the Article synthesizes seemingly disparate property and resource doctrines into a coherent legal approach to the idea of waste. This overarching understanding of legal waste explains how individual anti-waste provisions originate and operate. Further, the waste framework serves as a practical tool for analyzing whether anti-waste laws remain in touch with current resource contexts and societal preferences. Finally, it offers theoretical insight about how anti-waste provisions work cumulatively to inject a necessary adaptability into property law.

Publication Citation

56 Arizona Law Review 741 (2014).

Disciplines

Environmental Law | Law and Economics | Natural Resources Law | Property Law and Real Estate | Water Law

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