At once, the doctrine of waste is one of the most familiar and most obscure concepts in American law. Real estate attorneys routinely draft documents prohibiting waste of land subject to life estates and leases. Water lawyers are steeped in the written, if not always enforced, prohibition against waste in water codes across the country. And oil and gas lawyers invoke the avoidance of waste in support of virtually every request to a conservation agency. Despite its importance, however, it is difficult to muster a conceptual definition of waste that is not a mere tautology. Waste, we often say, is the failure to make beneficial use of a resource. Yet what is a “beneficial use” but one that is not wasteful?
A study of cases involving waste doctrines across real property, water, and oil and gas law reveals a deeper, unifying principle—the “waste principle”—which also underpins the management of public property under the public trust doctrine. Uncovering this principle and exploring its manifestations reveals its potential as a common law tool for addressing difficult and emerging issues of natural resources management that elude the reach of existing regulation.
To account for cases across diverse legal fields, the waste principle must be formulated at a high level of abstraction. At this level, the principle prohibits negative-sum uses of property when the owners’ self-interest would not reliably produce this result absent legal constraint. By “negative-sum,” we mean uses that generate fewer benefits than costs, thereby reducing the total net value of the property to all its owners.
First, consider the case of A, who owns the whole undivided fee simple in Blackacre. A is free to use or not use Blackacre however she pleases (constrained by nuisance and land-use controls), including by arbitrarily destroying the magnificent and valuable house on the premises. The law does not preclude such destruction, even though it would manifestly reduce Blackacre’s value, because A’s self-interest should prevent her from demolishing it for no reason.
This is not so where A owns only a life estate, or where she owns a right to extract water, oil, or gas from a common supply. Because A must share the property, her self-interest may lead her to use or dissipate it in ways that benefit her but that reduce the property’s overall value. To prevent this, the law prohibits A from “wasting” the property.
The oil and gas case Elliff v. Texon Drilling Co., 210 S.W.2d 558 (Tex. 1948), demonstrates this principle. Texon drilled into a common reservoir and its well blew out, destroying the gas and condensate under its land and Elliff’s land next door. Texon’s actions clearly reduced the value of the reservoir without creating any offsetting benefit, and because it shared the reservoir with Elliff, it was liable for waste.
The principle operates similarly in water law. For example, in Shodde v. Twin Falls Land & Water Co., 224 U.S. 107 (1912), a senior water rights holder was barred from using a giant, old-fashioned wheel to divert water from the Snake River in Idaho because it used nearly the entire river to operate, monopolizing it and depriving junior holders. Although operating the wheel benefitted the senior holder, it created greater losses for the juniors, reducing the flow’s total value and violating the waste principle.
The principle also holds for resources that are subject to the public trust doctrine. As acknowledged in the seminal case Illinois Central Railroad v. Illinois, 146 U.S. 387 (1892), the public trust doctrine limits the state’s power to grant private rights in certain resources like submerged lands, which are considered held by the state in trust for the public. The Supreme Court held that Illinois breached this trust by conveying the shoreline of Lake Michigan in Chicago to a private railroad because (like in Shodde) it permitted a private monopoly over the resource that diminished its overall value to the public. Id. at 452–53.
Three notable features of the waste principle contribute to its ability to curtail abuses of natural resources. First, it is adaptive. As a standard, the stringency of the waste prohibition ratchets up and down with changing circumstances, including the physical characteristics of the resource, the demand for the resource, and technological innovation. Second, waste enforcement is largely decentralized. At common law, the waste principle provides a private right of action to remedy, including by injunction, the overexploitation or monopolization of common resources. This right of action requires no bureaucracy to enforce, but instead distributes enforcement across resources and individual owners. However, as the scale of resource use grows to the point where decentralized private enforcement is no longer effective, the waste principle facilitates the establishment of regulatory schemes to overcome enforcement difficulties. Thus, the waste principle permits decentralized enforcement so long as it is effective and facilitates bureaucratic enforcement when it is not. And third, the waste principle is forward looking. It grants rights in resources to future interest holders and thereby places limits on present holders’ exploitation. In this sense, the principle is well suited to conserving exhaustible resources.
As we attempt to illustrate in the following sections, recognizing this waste principle may enable more active common law management of the environment and natural resources.
There are many potential practical applications of the waste principle in environmental and natural resources law. The following offers only a high-level survey of some of the possibilities.
As it pertains to the management of water resources, the waste principle confirms and clarifies what water codes already prohibit. The failure of water codes to prevent and remedy waste, especially in the West, is well documented and occurs in part because of the difficultly in curtailing existing senior water rights. Understood in light of the waste principle as an inherent limitation on any title to a common resource, an administrative agency or state engineer does not, and by definition cannot, infringe senior rights by curtailing them to avoid waste. The inverse is also true: A state cannot validly create or authorize a water right in a use of water that constitutes waste.
Often the trouble for water administrators is in identifying when an existing beneficial use or diversion subsequently becomes wasteful. As Shodde aptly illustrates, senior uses or means of diversion that were net beneficial when they were perfected may well become net wasteful over time as water stocks decline, appropriations proliferate, and diversion technology improves. Water rights are not simply “set it and forget it,” especially in rapidly depleting groundwater aquifers in the West, but must be continually reexamined in light of changing circumstances to avoid waste. The waste principle sets the standard for reexamination, which requires greater efficiency as the resource grows scarcer and the costs of its use rise. The extent of water rights is always proscribed by the waste principle, but under the principle, the particular definition of waste applicable to a given water right may become more or less (though almost always more) demanding over time. The waste principle thus empowers—indeed obligates—water administrators to continually enforce the waste limitation on water rights accordingly.
As in the case of water, the right to produce oil and gas is inherently limited by an obligation to use due care to avoid waste. This too has been codified through oil and gas conservation statutes, which empower agencies to regulate oil and gas production to prevent waste and protect correlative rights (see, e.g., Wyo. Stat. Ann. § 30-5-102). Conservation rules frequently codify the waste principle by requiring an operator to demonstrate that its proposed activity produces a greater benefit than any resultant losses to the common source of supply. For instance, whereas statutes prohibit spillage of oil or flaring of gas from natural gas wells, conservation regulations permit flaring of gas from oil wells where the cost to capture and market gas would exceed the value of the gas flared. As the resource becomes more scare or where nonwasteful alternatives to flaring are developed—such as the ability to use casinghead gas to power bitcoin mining—the waste principle requires conservation agencies to further limit flaring and require greater conservation measures.
The common law waste doctrines primarily operate between owners of a common pool of resources. It proscribes a class of activity that violates the rights of other owners in the resource. Likewise, most oil and gas and water conservation regulations traditionally protected common owners’ correlative rights. The public, however, also has an interest in the use and misuse of common pool natural resources. For example, water waste and natural gas flaring, in addition to possibly injuring the correlative rights of the owners in the source of water and gas, may also result in significant and widespread environmental impacts to surrounding communities and the public in general.
As noted, however, the waste principle does afford protection to the public interest. Just as the principle undergirds waste doctrines and conservation regulations, it forms the foundation of the public trust doctrine, which limits the government’s power to permit private uses of public resources, where the present and future harms outweigh the benefit, resulting in net losses. For instance, as the Nevada Supreme Court recently acknowledged in Mineral County v. Lyon, 473 P.3d 418 (Nev. 2020), the state is constrained by the public trust doctrine in administering its prior appropriation water code, such that failing to curtail water rights for waste under the code could breach the public trust. Thus, while water administrators and courts may hesitate to enforce waste regulations, the waste principle, acting through the public trust doctrine, may hold them to account. Understanding the public trust doctrine as an extension of the common law waste principle to public resources may open new pathways for litigants to address the issue of environmental or economic externalities.
Despite extensive statutory and administrative regulation, and robust jurisprudence, waste is underenforced by both agencies and courts. Environmental enforcement actions by state conservation agencies are rare and often carry only modest penalties, at times far less than the lost value to the common resource. Rather than take up the burden, however, modern courts have also been hesitant to resolve disputes concerning waste of common pool resources whether due to concern about the potential for takings, lack of jurisdiction, or out of political and legislative deference. Waste cases regarding overuse and purposeless exhaustion of common pool resources are the exception rather than the rule. Instead, courts have deferred to administrative regulation as displacing, rather than complementing, the common law of waste.
Vogel v. Marathon Oil Co., 879 N.W.2d 471 (N.D. 2016), demonstrates the difficulties plaintiffs face bringing common law waste actions, as well as courts’ reluctance to carve out room for common law actions among complex administrative regulations and statutory enactments. In Vogel, the plaintiff mineral owner in North Dakota sued the defendant oil and gas producer seeking, among other claims, damages for waste and conversion resulting from flaring operations that exceeded the volume permitted by the industrial commission and North Dakota Century Code § 38-08-06.4. In addition, she argued that as a person aggrieved by the defendant’s excessive flaring, the state’s Environmental Law Enforcement Act (ELEA) provided her with a private right of action to enforce North Dakota’s flaring statute. The North Dakota Supreme Court affirmed the district court’s dismissal of the case. Although the court noted North Dakota’s common law waste standard, it found that the flaring statute had replaced any common law claims for damages from flared gas. Thus, although the ELEA provided the right to sue, the court held that it did not duplicate statutory or common law remedies, thus first requiring the plaintiff to exhaust administrative remedies.
This reluctance is echoed in judicial restraint related to the public trust. Although the public trust doctrine has significantly expanded since Joseph Sax’s seminal article, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970), it has yet to realize its full potential. Courts remain divided about the reach of the doctrine to non-riparian resources and to the federal government. Most notably, in Juliana v. United States, the Ninth Circuit found that the plaintiffs’ public trust claims were not redressable by the court based on its lack of power to make complex policy and political decisions. 947 F.3d 1159 (9th Cir. 2020).
The magnitude of climate change and other modern environmental problems is so great that commentators have suggested the need for a leviathan of new regulation or a World War II–scale mobilization; yet, recent history suggests that legislative and regulatory solutions alone are insufficient. As applied to new problems, environmental statutes and regulations are inflexible and unwieldy. For instance, courts have overturned efforts to stretch federal land management and environmental regulations beyond their statutory purpose to solve climate problems related to greenhouse gas emissions from flaring. State of Wyoming v. U.S. Dep’t of Interior, 493 F. Supp. 3d 1046 (D. Wyo. 2020). In contrast, the common law accounts for changing values and utilities over time, as Justice Scalia acknowledged in Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031 (1992), where he wrote that the background principles of the common law that delimit the state’s power to regulate the use of private property allow for “changed circumstances or new knowledge [that] may make what was previously permissible no longer so.” As a common law principle, waste is not static, but rather adaptive, and can grow to meet new and emergent challenges. The failure of plaintiffs in Vogel, Juliana, and their kin, despite significant unredressed harms, suggests the need for more integrated environmental governance wherein legislation and regulation are complemented and guided by overlapping common law doctrines. As Professors Galperin and Kysar detail in their book chapter, Uncommon Law: Judging in the Anthropocene, in Theoretical Underpinnings and Implications of Climate Change Litigation 15–37 (Jolene Line & Douglas A. Kysar eds., 2020), reengaging the common law as intertwined with statute and regulation has the potential to liberate the current environmental governance paradigm from its stultifying nature and adapt it to the task of solving modern environmental problems.
The doctrine of waste is an integral part of the common law framework for property rights, which, together with trespass and nuisance, mediates the property rights and duties of individual owners within a common neighborhood or common pool. The doctrine of waste serves a distinct purpose because of its uniquely forward-looking nature and application, even in instances where there is no physical invasion of another’s property or interference with another’s existing use and enjoyment. Waste prohibits wrongs that neither trespass nor nuisance addresses, such as where a defendant’s conduct within the bounds of its own property unfairly diminishes the amount of a common resource available to other owners for beneficial use.
As two centuries of common law cases demonstrate, courts are well equipped and obligated to address issues of waste, even in untrodden areas such as unregulated pollutants, should they have the audacity to do so. This is not large, schematic change that is beholden to legislative action or inaction. The common law waste principle has operated for centuries to resolve exactly these kinds of disputes in a manner that balances present and future interests with numerous other values for the maximization of individual and societal welfare. The fact that there remain unresolved political questions does not relieve courts of their obligation to prevent owners from laying waste to common pool resources such as groundwater and oil and gas through compensation or injunction. Doing so will create accountability and establish new norms that will, in turn, drive innovation and adaptations in private ordering in a way that buttresses statutory systems of environmental regulation.
So too, courts are obligated to hold agencies to their statutory delegated duties to prevent waste and governments to their role as trustees of public resources. Doing so preserves the nature of property rights as being limited by an obligation not to impose unreasonable losses on other owners of the same resource, present or future, and the role of government to steward resources set aside for public use in a way that complements and edifies environmental statutes. Moreover, the doctrine of waste can grow beyond its traditional applications without violence to its basic structure in order to meet a multitude of new challenges that lie well within the doctrine’s traditional function in ordering the use of shared property. Where the statutory and regulatory apparatus fails to redress waste, courts should be emboldened to apply the common law of waste to protect its virtues of efficiency, sustainability, and self-governance.
In this way, common law principles like the waste principle may help address one of the overarching problems of modern environmental law: statutory obsolescence. The major federal environmental law statutes were passed in the 1970s and 1980s, and while broad in their purposes and provisions, they simply do not cover every emerging environmental hazard. The solutions to this problem are limited. An implementing agency may try to find a statutory basis for regulating the new hazard, but such efforts are subject to court challenges and often result in a patchwork of regulations that are ill-suited to their intended purpose. EPA’s recent and controversial attempts to regulate the emission of greenhouse gasses under the Clean Air Act provides one cautionary tale of the challenges and risks of regulating around statutory obsolescence. Congress could instead resolve statutory obsolescence in a more straightforward manner by amending existing or passing new statutes to deal directly with emerging environmental hazards. In an era of political division and legislative deadlock, however, this is often the least likely resolution. When legislative and regulatory answers are lacking, environmental advocates may seek remedies under the common law, including under the common law of waste.
For example, consider how the waste principle might be applied to address the contemporary problem of soil and groundwater contamination by a largely unregulated family of pollutants called per- and polyfluoroalkyl substances (PFAS). These man-made chemicals have been used in industrial and consumer products since the 1950s and are now common in the environment. The list of negative health effects associated with PFAS exposure is noteworthy and growing. Yet, until very recently, there has been no effort to regulate their release or remediation under existing federal environmental statutes or to adopt new legislation to address the issue directly. Even though EPA is in the early stages of developing relevant drinking water standards under the Safe Drinking Water Act and groundwater cleanup recommendations at Superfund sites under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), there is no guarantee that the regulatory initiatives begun under one administration’s EPA will survive under a successor administration. What’s more, the remedial effect of these new regulatory standards would be limited to sites that are eligible for CERCLA cleanup, a process that is known to be slow and subject to excessive delay.
Using the waste principle, however, advocates may find a common law avenue to remedy existing contamination of groundwater aquifers. Any owner of a water right in a contaminated aquifer, including a municipality, may pursue a claim for waste against another owner that used the aquifer to dispose of PFAS waste or permitted the release of PFAS into the aquifer. The theory would be that the polluter’s use of the common resource lacked a benefit sufficient to offset the other owners’ loss of the ability to safely use the resource. Additionally, the waste principle may justify an action against the state water administrator for allowing the polluter to use a common aquifer in a wasteful manner, under either the state’s water code or a public trust doctrine theory.
In the era of administrative regulation of the environment and natural resources, common law waste doctrines can seem anachronistic. Yet it is the very fact that these doctrines stand apart from the bureaucratic apparatus that makes them a viable supplement to existing and future regulation. Owing to its forward-looking, decentralized, and adaptive framework, environmental and property advocates alike may find a useful common law tool in the waste principle.
