Necessity knows no law? How the climate crisis shapes the State’s power to take or limit ownership. | Land Portal

Global warming is one of the greatest challenges humanity has ever faced. The reduction of the emission of greenhouse gas by cutting back consumption, particularly in high-income countries, and the transition from fossil fuels as energy sources to renewable energy sources such as wind and solar power are essential to the survival of billions of people. However, this requires the cooperation of billions of businesses and people who, for example, drive cars that run on petrol or heat their buildings with gas or oil. If the transition is too slow and state subsidies do not do the trick, what are the powers of the State to force citizens to produce and consume less or to adopt renewable energy sources? For instance, can the State force you to put solar panels on your roof?

These questions and topics will be the focus of the international hybrid legal conference ‘Takings for Climate Justice and Resilience’ in Groningen (The Netherlands) on 29 and 30 September 2022. Register for the conference here.

By Dr. Björn Hoops, LL.M. and Dr. Leon Verstappen 

The latest IPCC report makes it abundantly clear that we are failing to reach the target of limiting global warming to 1.5°C compared to the pre-industrial era. If we are to reach this target, we need to change farming to reduce the emission of greenhouse gas, move away from fossil fuels as energy sources and adopt renewable energy sources such as wind and solar power. At the same time, particularly high-income countries need to reduce consumption and the exploitation of nature, for example to restore natural greenhouse gas storage such as wetlands.

These changes are of a revolutionary magnitude. Politicians have ambitious targets. For example, the EU wants to cut greenhouse gas emissions by 55% compared to 1990 by 2030. However, to reach these targets, billions of people need to change their lifestyle and billions of businesses need to change the way they operate and the products they produce, fundamentally and quickly. If they do not do it voluntarily, for example due to rising energy prices or state subsidies, the State has to compel them to do it if climate targets are to be reached.

From a legal perspective, ownership is what stands between the States and their climate targets. If the State plans to phase-out coal power plants due to their CO2 emissions, the owners will say that the State goes too far in limiting their ownership. If the State wants owners to insulate and put solar panels on office buildings and homes, these owners will say the same. If the State forces a farmer to tolerate a wind power plant on their farm, the farmer will say they are being expropriated. If the State takes ownership of farmland to reduce harmful nitrogen emissions, as may happen in the Netherlands soon, this farmer will say the same.

And, they may have a point. Constitutions and treaties around the world protect ownership (or ‘property’) from expropriations (or ‘condemnations’, exercises of the ‘power of eminent domain’) and limitations that go too far (or ‘regulatory takings’, ‘indirect expropriations’, or ‘inverse condemnations’). The State always has to pay compensation for expropriations. Owners may challenge all of the described measures in court, and it cannot be ruled out that the court will strike them down or award compensation for limitations, such as the obligation to put solar panels on one’s house. Ownership may thus put the State in a straightjacket or bankrupt it. In normal times, this protection of property can be useful because it gives owners autonomy from the State and decentralises power in a society where the distribution of ownership is fairly equal.

The problem is that the times are not normal. Just like the COVID-19 pandemic, global warming is a true emergency and should enlarge the scope for States to impose responsibilities and obligations on owners to fight global warming. However, this insight has yet to sink in and reduce the protection of property. Today, there are few legal powers for States to force owners to reduce the greenhouse gases from their factories, farms, homes, and offices. For instance, in the Netherlands, office buildings need to have a certain energy label by 1 January 2023, which compels owners to climate-proof their office buildings with insulation, heat pumps, and solar panels if they want to avoid closure. However, this obligation only applies if owners can earn back their investment within ten years. With current energy prices, this will not be much of a problem. This requirement does show that the State does not dare to impose losses on owners to fight global warming. Too often, officials are genuinely uncertain and ask us whether property protection will prevent the State from imposing other climate-related obligations.

This uncertainty is natural because such climate-related obligations are new, and we experts do not have all the answers yet. All of us need to act fast though. To gain new insights, we are hosting the international hybrid conference ‘Takings for Climate Justice and Resilience’ in Groningen (The Netherlands) on 29 and 30 September 2022. Speakers from both the Global North and Global South will discuss various topics, such as:

  • expropriation as a means to acquire land for renewable energy installations;
  • limitations to compel owners to make their buildings climate-proof;
  • limitations and expropriation for purposes of cutting back the emission of greenhouse gas and conserving nature;
  • special challenges within condos;
  • limitations and expropriation as means for adaptation, for example to prevent flooding.

We are mindful that to people who live under governments that do not respect human rights, vesting even more power in the State is a daunting prospect. We are also mindful that to many people and entire countries, climate-proofing is or appears to be a luxury they cannot afford. At the conference, we will take into account these perspectives. Please, feel warmly invited to join us in Groningen or remotely to discuss common standards for takings for climate justice and resilience. Find out more information about the hybrid conference. 

Related content: 
Community land governance
29 September 2022
University of Groningen
Radbout Universiteit
University of Cape Town
University of Johannesburg
University of Silesia in Katowice

The Expropriation Expert Group, founded in 2013 as a collaborative effort of the universities of Cape Town, Groningen, and Nijmegen, is organising the sixth international conference of the Rethinking Expropriation Law series.

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