Legal rights of private property owners vs. sustainability transitions?

Abstract

This paper discusses sustainability transitions from a legal rights perspective. It is widely agreed that governments need to drive a systemic change towards environmental sustainability. In order to reach sustainability, the prevailing unsustainable regime must be destabilized while more sustainable alternatives are promoted to create a new regime. An unsustainable regime should not have a legal right to exist, but transition must be just also for the private property owners that are part of the regime. Justice issues arise particularly when individual persons, entrepreneurs and companies are prohibited to use their property and when their investments become futile. Long transition periods make adjustment easier, but they do not solve all the problems, and sometimes the urgency of environmental problems makes transition periods impossible. If laws set severe limitations on property rights or if legitimate expectations are frustrated by the administrative branch, compensations may be in order. All countries driving transitions may face a two-front legal battle where powerful corporations are suing them for property rights and citizens for environmental rights. Courts and tribunals must reformulate property law as well as trade and investment law to assimilate environmental concerns.

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