People and Penguins: The Case for an Environmentally Conscious Property Law.

The development of environmental law starting in the mid-20th century involved constant tension with private property. Attempts to protect the dwindling natural resources, extinct species of animals, and ecosystems at risk have often encountered obstacles when they demanded interference with private property. Although the theoretical roots of private property do not justify its transformation into an environmental obstacle and, to a large extent, attach importance to environmental values in justifying private property rights, it was private property that stood at the forefront of legal conflicts that revolved around attempts to expand the environmental protection of natural resources. The reason for turning private property into an obstacle to a proper environmental policy stems from adopting a concept according to which private property protects only human interests and values. In contrast, environmental interests that cannot be converted into human terms remain outside private property boundaries. This either–or concept, or as William Baxter termed it in 1974, “peoples or penguins,” harms the ability of courts and other decision-makers to implement a proper and effective environmental policy because it prioritizes human interests over those of nature and its resources. This Article claims there is no reason for the decision-makers to be forced to choose between people and penguins since the interests of both humans and nature can normatively, and practically should, find expression in private property. Private property as a legal institution is an arena for value discussion as well as for making balances between values that are perceived as necessary for society. The exclusion of environmental values from the value clarification conducted to define the scope of property rights is not only a normative failure but also harms the ability to deal effectively and adequately with pressing environmental challenges. The internalization of environmental values into private property, along with human (owner freedom) and social values (such as efficiency and shared welfare), will enable a proper definition of property rights and will provide courts and other decision-makers with the means to formulate, and implement, a proper environmental policy. [ABSTRACT FROM AUTHOR]