Journal of Environmental Law & Litigation : Vol. 25, no. 2 (Fall 2010)

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    Journal of Environmental Law & Litigation : Vol. 25, No. 2, p. 303-384 : The Right of Nonuse
    (University of Oregon School of Law, 2010) Laitos, Jan G.; Keske, Catherine M. H.
    Humankind is on a path of inefficient and unsustainable resource use and exploitation. As a result, the earth and its resources are now facing irreversible disruptions that have the potential to affect multiple generations. These disastrous global effects are not only caused by excessive resource use. Rather, accelerated human use of resources also has the devastating consequence of impairing the purely ecocentric benefits that follow when humans do not use resources. When resources are left alone by humans, when they are not exploited or developed, their nonuse is beneficial for the entire biosphere, of which humans are only a part. In this Article, we show how the destruction of this critical nonuse component of natural resources is creating many of the alarming environmental changes that are so disturbing to the planet. Then, through a series of analytical arguments founded in economic game theory, we illustrate that sustainable resource use can only be achieved if legal rights are bestowed upon not just human resource users, or humans who benefit themselves from resource nonuse, but also upon the resource itself. We define this legal right as the resource’s “right of nonuse.” Establishing a “right of nonuse” effectively privatizes a resource, facilitating a cooperative game that is between three kinds of players: human resource users, humans who selfishly prefer resource nonuse, and the resource itself. An analysis under this three-player game, which at last includes the natural resource itself as a critical actor, provides a framework for moving toward an efficient, sustainable path of resource conservation.
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