Transitioning towards circular systems: property rights in waste

Publication Date31 Aug 2020
DOIhttps://doi.org/10.1108/JPPEL-03-2020-0018
Pages219-234
AuthorKatrien Steenmans,Rosalind Malcolm
SubjectProperty management & built environment,Building & construction,Building & construction law,Real estate & property,Property law
Transitioning towards circular
systems: property rights in waste
Katrien Steenmans
Coventry University, Coventry, UK, and
Rosalind Malcolm
School of Law, University of Surrey, Guildford, UK
Abstract
Purpose The purpose of this paper is to explore the impact that property rights can have on the
implementation of circular waste economies, in which waste is reused, recycled or recovered, within the
EuropeanUnions Waste Framework Directive.
Design/methodology/approach A theoretical lens is applied to the legal denition as well as
productionand treatment cycle of waste to understand the property rights that can exist in waste.
Findings This paper arguesthat even though different property rightsregimes can apply to waste during
its creation, disposal and recovery, the waste management regulatory and legal system is currently
predominantly set up to support waste within classic forms of private property ownership. This tends
towards commodication and linear systems, which are at odds with an approach that treats waste as a
primary wanted resource rather than an unwanted by-product. It is recommended that adopting state or
communal property approaches instead could affect systemic transformative change by facilitating the
reconceptualisationof waste as a resource for everyone to use.
Research limitations/implications The property rights issues are only one dimension of a bigger
puzzle. The roles of social conceptualisation, norms, regulations and policiesin pursuing circular strategies
are only touched upon, but not fully explored in this paper. These provide other avenues that can be
underpinnedby certain property regimes to transition to circular economies.
Originality/value The literature focused on propertyrights in waste has been very limited to date. To
the best of the authorsknowledge, this paper is the rst to consider this question in detail from a legal
perspective.
Keywords European Union, Property rights, Waste, Waste management, Circular economy,
Waste Framework Directive
Paper type Research paper
1. Introduction
The circular economy concept promotes measures to reconceive would-be-wasted
materials as resources rather than unwanted goods. In essence, it is an economic system
based on the reuse, recycling and recovery of materials to achieve economic prosperity,
environmental protection and social equity (Kirchherr et al., 2017). The cited
environmental, social and economic benets of the circular economy include the creation
of local jobs, opportunities for social integration, reduced carbon dioxide levels and
simultaneously, the minimisation of the use of virgin materials and of the environment as
asinkforwaste(European Commission, 2014). The concept has therefore gained
momentum in academia and industry (Geissdoerfer et al., 2017;Kircherret al., 2017), and
has been implemented and integrated in European Union (EU) laws and policies such as
the Waste Framework Directive (WFD) and Circular Economy Package (European
Commission, 2020).
Property
rights in waste
219
Received27 March 2020
Revised11 June 2020
Accepted29 June 2020
Journalof Property, Planning and
EnvironmentalLaw
Vol.12 No. 3, 2020
pp. 219-234
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-03-2020-0018
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
Despite their promotion and the often-celebrated benets, the actual implementation of
circular approachesis limited and fragile(Gregson et al., 2015, p. 218). Environmentallegal
initiatives for dealing with waste tend towards an end-of-lifeapproach (Technopolis
Group et al., 2016), which is linearand horizontal. The legal objective of preventing wastein
laws occurring through design initiatives (such as in the WFD), while growing stronger, is
still in its infancy and with supply chains girdling the earth, this will continue to present a
signicant challenge for the foreseeable future. It becomes necessary therefore to consider
how the law can be used to drive this approach and in this paper, we present one approach
which we argue is capable of changing perceptions and therefore responsibilities and
obligations towards that thing called waste. We argue that a changed perception of
property rights in waste is one component which can underpin incentives for circular
approaches; property rights in waste can reinforce and inuence the management of waste.
We base this argument on the notionthat with ownership, whether private or public, comes
obligation.
This discussion is not only timely in relation to the growing traction of the circular
economy concept, but also because of the continuing discussions on property rights for the
efcient environmental management of resources (Johnson, 2007;Barnes, 2009;France-
Hudson, 2017). A key pivot in this debate was Hardins (1968,1981) original argument that
privatisation or governmentintervention is needed to prevent the tragedy of the unmanaged
commons. It stipulates that every individual,acting independently and rationally according
to their own self-interests, will try and reap the greatest benet from a resource, thereby
depleting the resource and behaving contrary to the best interests of the whole group
(Hardin, 1968). Hardin(1968, p. 1245) applied this tragedy within the contextof waste:
The rational man nds that his share of the cost of the wastes he discharges into the commons is
less than the cost of purifying his wastes before releasing them
Even though many scholars have echoed the need for individual private or state property
based on arguments of incentives (Burger and Gochfeld, 1998), there are also many critics
who argue that other successful institutions exist that manage the commons and fall
between these types of property (Feeney et al., 1996; Ostrom, 1999). Indeed, Hardin (1991)
himself later acknowledged that his approach was overly simplistic. These debates and
discussions have been applied withinnumerous contexts for example, in relation to water
(Lange and Shepheard, 2014;Malcolmand Clarke, 2018) and sheries (Berkes, 1987). Similar
discussions concerning the appropriate nature of property rights are warranted within the
context of waste becauseof its current negative economic, environmentaland social impacts
and the opportunity for positiveimpacts within circular economies (Steenmans et al.,2017).
These have so far been given little considerationin the literature (Hobson, 2016, p. 96),
though some notableexceptions exist (Steenmans et al., 2017;Thomas, 2019).
Thus, the particular questionwe investigate is:
Q1. What impact can property rights have on the implementation of circular waste
economies?
We address this question within the context of EU waste law and using some examples
from England to demonstrate national implementation [1]. Firstly, Section 2 sets out
how we understand property rights, although a detailed exposition of different
conceptual lenses of property rights is outside the scope of this article. In Section 3, we
consider the current property rights in waste within EU waste law. Section 4 discusses
the implications of these property rights for facilitating transitions towards circular
economies. Section 5 concludes the paper.
JPPEL
12,3
220

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