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, this Article finds that the law selects from a catalog of five specific, and sometimes competing, societal values to define waste. These values include: (1) economic efficiency; (2) human flourishing: (3) concern for future generations: (4) stability and consistency; and, (5) ecology. The law recognizes waste in terms of one of or a combination of these values.

After identifying something as waste, the law seeks to eliminate it via targeted anti-waste provisions, which follow one of three approaches. First, "usage-veto" measures empower select 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 those resources that are fundamental to human and ecosystem flourishing.

Through this framework, this 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.

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