The Modern-Day Discovery Doctrine: Reforming Property Law's "Productive Use" Doctrine for the Age of Climate Change

When European settlers first colonized the Americas, claiming Native land as their own, they largely believed their actions to be justified. To Europeans, property rights over land emanated from putting one's labor into that land, "improving" it by removing it from a state of nature. Absent such ''productive use," land had not been claimed and was therefore ripe for the taking. Yet while Native Americans had labored significantly and fundamentally shaped the land around them, European settlers deemed the Americas to be in a state of nature. Such attitudes towards Native American labor and property rights reveal a strikingly limited conception of ''productivity": one encompassing activities that dominate and develop wilderness, but not those that preserve it. European settlers viewed exploited land as generating economic value, but deemed uncultivated nature essentially worthless. Over the course of the nineteenth-century, the view that undeveloped nature lacked value and that only a specific type of productivity should result in property rights motivated the development of a property law system that heavily favors those who develop, rather than conserve, preserve, or restore their privately-owned wildlands. And while today our desire for land development has been tempered by a compelling interest in wilderness preservation, a limited, nineteenth century conception of productive use remains entrenched in modern American property law. Doctrines like nuisance, waste, and adverse possession continue to award stronger property rights to those who engage in environmentally destructive practices, incentivizing wilderness destruction. In the face of climate change, this poses a problem; undeveloped landscapes like forests and grasslands are potent carbon sinks, whose capacity to offset carbon emissions is of enormous value to society. That value is threatened by a doctrine that disincentivizes the preservation of America's remaining privately-owned wilderness. In this Note, I explore how reimagining this aspect of property law could better protect the environment. While much of the harm caused by the productive use doctrine's bias towards wilderness development is irreparable, we can and should reduce future harm. Doing so will not require the productive use doctrine to be eliminated in its entirety; rather, our definition of ''productivity" should be updated to reflect society's interest in preserving what privately-owned wilderness remains. This could be done, in part, by incorporating the value of carbon sequestration into the balancing tests courts apply when hearing property law disputes, compelling courts to weigh the value of a proposed development against the value generated by a piece of land's carbon sequestration capacity. Doing so could help counterbalance property law's current bias in favor of environmental destruction, creating an incentive to protect privately-owned natural lands and combat the climate crisis.