Property Negligence, and the Intergenerational Inequity of Climate Change

Abstract

The recent decision of the United States District Court in Kelsey Cascade Rose Juliana et al v The United States of America (‘Kelsey’) denied a motion to dismiss a suit brought on the basis of damages for future harms, suggesting that the law could be capable of developing in a novel way to allow claims on the basis of future harm from climate change. This article addresses the way in which such future harm may be conceived as part of a negligence claim, grounded in private property rights afforded by government.Private property consists of a bundle of rights comprising three primary powers of choice: use, exclusivity, and disposition. These three rights allow their holder to choose how to use, who to exclude, and how to dispose of whatever good or resource, tangible or intangible (from land, to shares, to trademarks and patents, to money, to reputation), is said to comprise the subject-matter of property. Sometimes referred to as the ‘liberal triad’, this simple definition captures the liberal conception of private property that predominates in every modern legal system in the 21st century world. And it applies to every thing (land, shares, trademarks, patents, reputations, and so on) capable of being called property. But how does the holder of property come to wield such power over the resources of our world?