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Do property rights in waste and by-products matter for promoting reuse,
recycling and recovery? Lessons learnt from northwestern Europe
Katrien Steenmans
Coventry Law School and Research Associate, Centre for Business in Society, Coventry University, Priory Street, Coventry CV1 5FB, UK
ABSTRACTARTICLE INFO
Article history:
Received 18 November 2020
Received inrevised form 10 February 2021
Accepted 11 February 2021
Available online xxxx
Within the context of concurrent global waste and resource crises, there is significant interest in promoting circular
economies. One of the identified ways to facilitate greater circularity is through replicable practices of industrial sym-
biosis, where industries and otherorganizations exchange waste and by-products resulting in economic, environmen-
tal, and social benefits. This paper investigates the role of a particular critical legal mechanism –property rights –in
enabling industrial symbiosis by drawing on the experiences of waste and by-product exchanges within three indus-
trial symbiosis case studies located in Kalundborg (Denmark), Peterborough (United Kingdom), and Rotterdam (the
Netherlands). In orderto determine whether propertyrights are incentives, facilitative mechanisms,barriers, or oppor-
tunities,the Schlager-Ostrom taxonomy is applied. Case findings evidencethat different property regimes can have fa-
cilitative effects on circularity within industrial symbioses. There is thus no absolute support presumedin favor of one
particular property rights regime over others; property regimes are flexible and hence allow for case specificity.
Keywords:
Property rights
Industrial symbiosis
Law
Waste
European Union
Circular economy
1. Introduction
Current global resource consumption and waste production are at un-
sustainable levels. Annual global primary resource extraction and use has
exceeded 100 billion tonnes per year since 2017, while simultaneously
more than 2 billion tonnes of municipal solid waste is generated annually
and could increase by 70% by 2050 (Kaza et al. 2018;CircleEconomy
2020). The circular economy concept has emerged as one of the possible re-
source and waste management strategies to mitigate these resource and
waste crises (e.g. Geissdoerfer et al. 2017). Circular economies aim to tran-
sition away from the traditional linear take-make-dispose approach, which
‘wastes’waste and is resource intensive, towards the prevention of wastes
and ‘looping’of any wastes produced and resources through reuse,
recycling, and otherrecovery for economic, environmental, and social ben-
efits (Kirchherr et al. 2017).
Industrial symbiosis networks, in which wastes and by-products are ex-
changed between different organizations, are identified as a circular econ-
omy implementation (de Abreu and Ceglia 2018;Merli et al. 2018) and
have been explicitly recognized in non-binding European Union(EU) policy
documents as a supportive strategy for achieving similar environmental,
economic, and social benefits to circular economies. Industrial symbiosis
networksare, for example, recognized as a strategy for facilitating the circu-
lar economy in the EU's new Circular Economy Action Plan (European
Commission 2020), as well as sustainable consumption and production in
the Roadmap to a Resource Efficient Europe (European Commission
2011), and resource efficiency in the European Resource Efficiency Plat-
form (European Commission 2012). More recently, and arguably more sig-
nificantly as a result of its legally binding nature, industrial symbiosis is
included in the Waste Framework Directive 2008/98/EC (WFD)
(Directive 2008/98/EC on waste and repealing certain directives, 2008)
as a result of amendments made by Directive 2018/851 (amending Direc-
tive) (Directive 2018/851 amending Directive 2008/98/EC on waste,
2018) to Article 5(3) to allow adoption of certain criteria by Member States
to “prioritise replicable practices of industrial symbiosis”(emphasis added).
This is in order to contribute to the overarching WFD objective to lay
down measures that prevent or reduce waste generation, impacts of waste
management and generation and impacts of resource use, “which are cru-
cial for the transition to a circular economy”(Article 1).
A central question is thus: what mechanisms can enable the develop-
ment of industrial symbiosis practices? While several facilitative mecha-
nisms have been explored in the literature, including a platform enabling
information and knowledge exchange (Raabe et al. 2017), an internet-
based market mechanism (Clayton, Muirshead and Reichgelt 2002), and In-
formation and Communications Technology tools (Grant et al. 2010),
scholars have identified the need to further investigate and develop under-
standingof extant industrial symbiosis case studies, as well as the incentives
Current Research in Environmental Sustainability 3 (2021) 100030
E-mail address: katrien.steenmans@coventry.ac.uk.
http://dx.doi.org/10.1016/j.crsust.2021.100030
2666-0490/© 2021 TheAuthor(s). Published by Elsevier B.V. Thisis an open access article under theCC BY-NC-ND license(http://creativecommons.org/licenses/by-nc-nd/
4.0/).
Contents lists available at ScienceDirect
Current Research in Environmental Sustainability
journal homepage: www.elsevier.com/locate/crsust
fostering industrial symbiosis (e.g. Domenech et al. 2019;Neves et al.
2020). This paper contributes to this literature by exploring the role of a
specific legal paradigm –property rights –within selected existing indus-
trial symbiosis networks (see Section 2). This discussion is both timely
due to the increased recognition of industrial symbiosis benefits and their
role in achieving circular economies, but also because of ongoing scholarly
discussions on property rights for effective environmental management of
resources (e.g. Hanna et al. 1995;Libecap 2009), which is at the core of in-
dustrial symbiosis and circular economy.
The rationale for and contributions of focusing on property rights within
the industrial symbiosis context are three-fold. First, property rights are at
the core of exchanges while thus far being under-explored in industrial
symbiosis literature and its wider field of industrial ecology; who owns
and is responsible for wastes and other resources determines what can
enter industrial symbiosis systems. The limitedliterature on property rights
has an economic rather than legal focus. Sathre and Grdzelishvili (2006,
387) state that the role of government interests in developing industrial
symbiosis is a “question of public versus private responsibility for waste
and pollution, and intrinsically linked to the issue of property rights”,but
do not expand on this. Similarly, there is no discussion or elaboration be-
yond identificationof property rights as one of the challenges within indus-
trial ecology by Giurco et al. (2014) and Laybourn (2005).Desrochers
(2012) and Behne (2016) only mention property rights in relation to
them underpinning the economic dimension of industrial ecology. Very
limited prior research thus exists and has adopted a legal approach to prop-
erty rights in industrial symbiosis (and similarly in circular economies more
widely –see Steenmans et al. 2020). This paper fills this void by examining
the possible effects of property rights in three case studies of indus trial sym-
biosis networks.
Second, waste is increasingly regarded as a valuable resource, evi-
denced by the amending Directive highlighting “that waste is valued as a
resource”(Recital 2). The term ‘resource’has connotations of value, and
is sometimes even defined by reference to it (e.g. Merriam-Webster 2018;
Oxford English Dictionary 2018).How value is perceived may in turn be af-
fected by ownership and attribution, and thereforeproperty rights (Leopold
1968).
Finally, there are many theoretical discussions regarding the signifi-
cance of ownership in resource management –whether privatization, gov-
ernment intervention, or other institutions are most appropriate (e.g.
Hardin 1968;Welch 1983;Ostrom 1990;France-Hudson 2017;Thomas
2019). These debates and discussions have been applied within numerous
contexts (e.g. Berkes 1987;Lange and Shepheard 2014;Malcolm and
Clarke 2017). Similar discussions are warranted within the context of in-
dustrial symbiosis to consider the most appropriate property right interven-
tions to promote industrial symbiosis practices more widely.
The remainder of the paper is structured in four parts. First,the research
design is described and explained. The second part introduces the case stud-
ies and examines the property regimes present in each of them. These find-
ings are then discussed in the following section. The final section concludes
and identifies further research.
2. Materials and methods
This section first sets out the research question, followed by two sec-
tions detailing the data collection and analysis methods. The research de-
sign is summarized in Fig. 1.
2.1. Research question
The research question framingthis paper is: what is the role of property
rights in enabling industrial symbiosis systems in the EU? Within legal re-
search and practice, boundaries are important as they determine what is
and is not covered by the law, and when (Lieber 1838;Thayer 1908;
Cheyne and Purdue 1995;Steenmans 2018). For this reason, the terms
‘property rights’and ‘industrial symbiosis’are described below. What is
meant by ‘enabling’and how it is evaluated in this paper is set out in
Section 2.3.3.
Property rights are understood in this paper as a “man-made institution”
(Macpherson 1978, 1) that describes the nature of rights in resources
(Clarke and Kohler 2005). The frameworkadopted to understand and ana-
lyze property rights is described in Section 2.3.3.
Fig. 1. Research design.
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
2
Industrial symbiosis engages traditionally separate industries and other
organizations in a collective exchange of wastes and by-products resulting
in economic, environmental, and social benefits.
1
This definition combines
Chertow's (2007) seminal scholarly definition with definitions included in
the EU's policy documents (European Commission 2011;seealso
European Commission DG Environment News Alert Service, 2012;
European Commission, 2012). In essence, the exchanges within industrial
symbiosis systems comprise the reuse, recycling, or other recovery of
waste and by-product streams, which result in economic, environmental,
and social benefits (e.g. Lowe and Evans 1995;Chertow and Lombardi
2005;Hashimoto et al. 2010;Morales et al. 2019). Industrial symbiosis is
thus a particular manifestation of the circular economy, with circular econ-
omies covering materials more widely (beyond waste and by-products) and
at more levels (macro in addition to micro and meso levels) (Kirchherr et al.
2017;de Abreu and Ceglia 2018;Merli et al. 2018).
Key terms within the definition of industrial symbiosis warranting fur-
ther explanation are waste and by-products. Within the EU, waste “means
any substance or object which the holder discards or intends or is required
to discard”pursuant to Article 3(1) of the WFD. This definition has been the
subject of numerous EU cases (Case C-9/00, 2002; Case C-235/02, 2004;
Case C-304/94, 1997; Case C-444/00, 2003; Case C-457/02, 2004; Joined
Cases C-206/88 and C-207/88, 1990; Joined Cases C-241/12 and
C-242/12, 2013; Joined Cases C-418/97 and C-419/97, 2000)andresulted
in a lack of clear and definitive characteristics, which have in turn been
much discussed in the literature (e.g. Fluck 1994;Cheyne and Purdue
1995;Van Calster 1997;Tromans 2001;Malcolm and Clift 2002;Scotford
2007;Edwards 2013;Steenmans et al. 2017).
2
These issuesare not clarified
at national level, with the definition of waste transposed word per word in
the national legislation of the selected case studies (see next section). The
impact is however limited as the definition of waste is generally cast
broadly (Case C-176/05, 2007; Case C-188/07, 2008; Case C-252/05,
2007). Thus, uncertainty in a substance or material being waste means a
cautious lawyer would advise to treat it as waste (Steenmans 2018).
Waste can stop being waste as a result of the end-of-waste criteria set out
in Article 6 of the WFD. The discussion pertaining if and when waste
stops being waste is beyond the scope of this paper as it does not affect
the actual property rights involved –though it may affect their perception
–when the substance or material is produced or changes hands
(Steenmans and Malcolm 2020).
Instead of the intended product or waste, by-products may be produced
in production processes. Pursuant to Article 5(1) of the WFD (as amended),
by-products must meet the following four conditions: certainty of further
use; use without further processing other than normal industrial practice;
product of integral part of production process; and further use is lawful,
that is the substance of object “fulfills all relevant product, environmental
and health protection requirements for the specific use and will not lead
to overall adverse environmental or human health impacts”(Article 5(1)
(d)). There are uncertainties associated with these conditions –e.g. what
qualifies as ‘integral’and ‘normal’(Steenmans 2018)–but these are yet
to be discussed in EU case law. Similarly to waste, the by-product criteria
are transposed into the national law of the selected case studies (see next
section).
The terms ‘waste’and ‘by-product’are used interchangeably with ‘re-
sources’throughout this paper. This approach resonates with the view
adopted by interview participants.
2.2. Data collection
The research adopts a mixed-methods approach combining empirical
research with desk-based and doctrinal research. This approach is applied
for three reasons: triangulation, facilitation, and complementarity
(Hammersley 1996;Bryman 2008).
A multi-case study method is used toexplore the particularity and com-
plexity of property rights within real-life industrial symbiosis contexts (Yin
2009). The three selected case studies provide useful insights into the role
of property rights in waste: despite historically being criticized for not
being able to contribute to scientific development, it is possible to general-
ize based on one case study with the value of examples often undervalued
(Flyvbjerg 2006).
The selected industrial symbiosis case studies are in: Kalundborg
(Denmark), Peterborough (United Kingdom (UK)), and Rotterdam (the
Netherlands). The case study selection criteria were: location, exemplary
outcome, access, and language.
First, the cases selected are all within the EU,
3
which provides some uni-
formity in the regulatory and policy frameworks via the harmonizing effect
of EU law. For example, the definition of waste is exactly the same in the
Waste Ordinance (Bekendtgørelse af lov nr 1309 af 18.12.2012 om affald
some aendret, 2012) in Denmark; the Environmental Protection Act (Wet
milieubeheer, 1979)intheNetherlands;andtheEnvironmental Protection
Act 1990 in England as in the WFD. In relation to by-product, the term is
not used in the Danish Waste Ordinance, but the concept is still present as
materials meeting the by-product criteria are not classed as waste. In the
Netherlands and UK, by-products are defined by reference to the WFD in
the Dutch Environmental Protection Act and Waste (England and Wales)
Regulations 2011 respectively. The identical definitions do not indicate
that the governance of waste and by-products is identical across the case stud-
ies,butitprovidesattheveryleastacommonbaseline.Propertyrightsare
not harmonized at EU level due to different legal systems (see below),
though Article 36(1) of the WFD dictates that waste cannot be abandoned
(i.e. owners cannot unilaterally cede their ownership).
Second, the cases were selected using replication logic instead of repre-
sentation, which requires every chosen case to demonstrate the occurrence
of exemplary outcomes (Yin 2009). This is defined as those meeting
Chertow's 3–2 heuristic, as this starts recognizing complex relationships
rather than linear one-way exchanges (Chertow 2007). The heuristic re-
quires a minimum of three different entities, of which none are engaged pri-
marily in a recycling-oriented relationship, exchanging at least two
different resources. Moreover, the case studies are more than eco-
industrial parks as the entities include consumers.
Third, access was based on availability of resources on the case studies
and access to possible interview participants.
Finally, cases were selected in countries where the researcher had the
requisite language skills to read policy and regulatory documents.
Case study data was collected through interviews and desk-based re-
search. Desk-based research reviewed extant literature, and EU and na-
tional laws mainly to understand the case studies, and to triangulate and
validate data. Semi-structured interviews were conducted between 2015
and 2017. The open-ended questions on property rights included: Are you
aware of the property rights in the industrial symbiosis? What is the role
of property rights? Follow-up questions were asked (depending on preced-
ing responses), including: In your opinion, would it be possible to rethink
property rights by extending responsibility to the manufacturer so that
they have to take goods backinstead of selling them? Are communal prop-
erty rights something that you think can be further explored? These ques-
tions were thus focused on understanding the perception of property
rights by practitioners and experts, to compare and contrast withthe actual
assigned property rights in law (see Section 2.3.3). Interviews were audio
recorded, and then transcribed for analysis.
Sixteen interviews (eight in Kalundborg, five in Peterborough, and
three in Rotterdam) were conducted with representatives from industries
and other organizations exchanging wastes or by-products in the industrial
1
For a detailed discussion on how thisdefinition has been amended see Steenmans (2018).
2
The EU case law and literature on the definition of waste are reviewed in detail in
Steenmans (2018).
3
The UK triggered the process to leave the EU on 29 March 2017 with the process allowed
to take upto two years. At the timeof researchingthis paper, theUK was still a MemberState of
the EU. Currently, the UK remains subject to EU law,includingthe WFD, until at least 31 De-
cember 2020 as a result of the transition period.
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
3
symbiosis (hereafter referred to as symbionts) and third parties (i.e. stake-
holders, including municipalities and research organizations, that have a
role in the initiation and sustainment of industrial symbiosis, but are not
symbionts themselves). When the same information was being repeated
by interview participants, this indicated that sufficient interviews had
been conducted. As far as possible, participants were selected of similar ca-
pacity and levels across the three case studies.
2.3. Data analysis
Data from desk-based research and interviews were coded, with addi-
tional doctrinal research methods adopted for laws. This data was triangu-
lated before being evaluated and compared. These analysis methods are
detailed below.
2.3.1. Coding
Coding is used in qualitative inquiry to organize, sort, and analyze data
(Charmaz 2006). A code is a word or short phrase that “assigns a summative,
salient, essence-capturing, and/or evocative attribute for a portion of …
data”(Saldaña 2012, 3). An inductive approach was used to develop the
codes through identifying repeated themes and terms through two cycles:
first to identify initial codes, and then to check and confirm these codes.
2.3.2. Doctrinal law
Even though the doctrinal research method is used, this paper cannot be
categorized as a piece of doctrinal research as case studies and interviews are
also employed. Doctrinal research “focuses almost entirely on law's own lan-
guage of statutes and case law to make sense of the legal world”(Morris and
Murphy 2011, 31); it comprises identifying, analyzing, and synthesizing the
content of law, including the identification and exposition of ambiguities and
inconsistencies (Posner 1981;Hutchinson 2013). This process was mainly
applied to EU and national waste laws relating to definitions of waste and
by-products to understand the legal implications of the terms, and to check
whether they considered or addressed anything relevant to property rights.
2.3.3. Evaluation of property rights
Evaluation looks at what does and does not work, and why and how
(Pawson and Tiley 1997;Pawson 2013). A two-step evaluation process
was adopted to: (1) identifythe existing property rights regimes; and (2) as-
sess their effects. For the first step, a taxonomy was used to facilitate under-
standing by clarifying what property regimes are present based on the
presence of certain property rights.
Traditionally, property rights regimes have been described as private,
communal, state, or no property (e.g. Waldron 1988;Bromley 1989;
Clarke and Kohler 2005). This characterization is not without its limits as
it arguably “renders invisible many new forms of property”(Heller 2000,
417), but it can provide a useful analytical tool as long as it is acknowledged
that the boundaries “fray at the edges”(Heller 2000, 418) and that these
“ideal types are almost never found in practice. In most cases there are over-
lapping sets of rights, ‘underneath’the general classifications”(Barry and
Meinzen-Dick 2014, 298). The Schlager and Ostrom (1992) taxonomy
adopted and applied in this paper can help understand these overlaps.
Schlager and Ostrom subscribe to the notion that property is a ‘bundle
of rights’metaphor (e.g. Demsetz 1967;Penner 1996;Johnson 2007;
Ellickson 2011). This taxonomy is relevant to this research as it was devel-
oped in relation to research on common-poolresource systems, as which in-
dustrial symbiosis networks have been described (Steenmans 2018).
Common-pool resource systems comprise natural or man-made “resource
systems and a flow of resource units or benefits form these systems”
(Ostrom 2002, 39; see also Ostrom 1990).
Schlager and Ostrom, drawing on Commons (1924) and Ciriacy-
Wantryp and Bishop (1975),identifyfive separate bundles:
1. Access: the right to enter a defined property;
2. Withdrawal: the right to obtain resource units or products of a
resource system;
3. Management: the right to regulate internal usepatterns and transform
the resource by making improvements;
4. Exclusion: the right to determine who will have an access right, and
how that right may be transferred; and
5. Alienation: the rightto sell or lease either or both of the management
and evolution rights.
These rights do not need to be simultaneously present. Schlager and
Ostrom arrange these bundles across five classes of user as shown in
Table 1: full owner, proprietor, authorized claimant, authorized user, and
authorized entrant.
Private property has been described as “that sole and despotic dominion
which one man claims and exercises over the external things of the world,
in total exclusion of the right of any other individual in the universe”
((Blackstone II, 1765-1769) 2). There is therefore a legal entity that is the
full owner of the private property holding all five bundles. According to
Locke (1980), one way private property can come about is by man mixing
labor with the elements of the natural world so it becomes that person's
property (called Locke's labor theory).
4
State property is similar to private
property in that the state (or other public body) is the full owner and
holds all five bundles. But, in practice the state will often permit individuals
and groups to access the property, such as public parks (Barry andMeinzen-
Dick, 2014). Communal property iswhere each member of the community
has the rightto (1) access the property, and (2) not be excluded from it. All
members of the community are therefore proprietors. No property (also
known as ‘res nullius’) is where everyone can access the resource but no
one has an enforceable right to this access against others or the state –so
everyone can enter and withdraw, but no one is an authorized entrant or
other class of user.
A limit of applying the Schlager-Ostrom taxonomy is that the bundle
of rights approach is not widely accepted in civil law (Orsi 2014). There
are, however, numerous examples where Schlager-Ostrom's taxonomy of
rights are applied in civil law systems without acknowledgement of the
possible ingrained conflict (e.g. Bouriaud and Smithüsen 2005;Stebek
2011;Baur and Binder 2013). This can be justified using Mattei's
(2000, 13) argument that “[t]he bundle metaphor can easily be adapted
…It will be enough to clarify that different [rights] might be missing in
different legal systems”.
Once the property rights are identified, the next step is to evaluate
their ‘enabling’effects. This is informed by what is and is not possible
under those property regimes, which determines whether they are in-
centives, barriers, or opportunities in the context of the case studies.
In this paper, incentives are defined as mechanisms that actively moti-
vate an exchange to take place; facilitative mechanisms enable ex-
changes but do not have causal impacts; barriers stop or limit an
exchange; and opportunities are where there is potential for property re-
gimes to become an incentive. The relevant impact(s) of property rights
inthecasestudieswasdeterminedbythenatureoftherightstogether
with what was conveyed during interviews.
2.3.4. Comparing case studies
In reviewing property rights and national laws, the different jurisdic-
tions of the case studies must be acknowledged –the UK has a common
Table 1
Schlager-Ostrom taxonomy. Adopted from Schlager and Ostrom (1992).
Authorized
entrant
Authorized
user
Authorized
claimant
Proprietor Full
owner
Access X X X X X
Withdrawal X X X X
Management X X X
Exclusion X X
Alienation X
4
There has been much discussion of Locke's labor theory in the literature.See for example
Waldron (1984),Judge (2002),andWiderquist (2010).
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
4
law system, while Denmark and the Netherlands have Scandinavian and
Napoleonic civil law systems respectively. The similarities and differences
between these systems ar e not examined in this paper, as this is unne cessary
according to mainstream comparative methods in legal research (Siems
2014). Despite differences, there are many commonalities between the
two systems (e.g. human rights, the rule of law, and a positive and rational
law) and often differences are misleading or exaggerated. Legal rules often
apply in similar ways, particularly as the case studies are limited to Western
legal systems (Siems 2014). However, it is necessary in relation to compar-
ing their property systems.
Civil and common law property systems are “coherent within them-
selves but difficult to reconcile”(van Erp 2006a). Some of the key differ-
ences identified are in their approaches to ownership and title; in civil
law there is a strict separation of property from obligations while in
common law “many of the lesser estates look something like very
long-term relational contracts”(Chang and Smith 2016, 139); common
law systems arguably have a larger and more open-ended set of property
rights; and common law still differentiates between land, personal prop-
erty, and trust law, whereas general principle s and rules exist in civil law
for all forms of property (van Erp 2006b;Chang and Smith 2016). De-
spite apparent differences between the details of civil and common
law property regimes, there is increased recognition that the leading
principles underlying policies, fundamental concepts, and basic rules
are quite similar, and that they may therefore be compared to a certain
degree in comparative studies (Mattei 2000;van Erp 2006a, 2006b;
Dalhuisen 2013).
3. Results: case studies
The case studies are set out below, with the focus limited to two ex-
changes within the industrial symbiosis networks in order to focus the
discussion.
3.1. Kalundborg industrial symbiosis
The seminal example of industrial symbiosis is located in Kalundborg
with at least 13 key symbionts exchanging 28 resources, presented in
Fig. 2.
5
The exchanges in the Kalundborg industrial symbiosis –including
the water from Lake Tissø and steam sold by Ørsted to Equinor –are con-
trolled by commercially negotiated contracts, most often between two
parties (Ehrenfeld and Gertler 1997;Jacobsen 2002;Jacobsen and
Anderberg 2004;Doménech and Davies 2011;andconfirmed by interview
participants). The contracts include clauses on the prices for the resource
exchanges for a set period, payment terms, and mechanisms for future
changes (such as escape clauses and requirements for upgrading) (Gertler
1995;Jacobsen 2002;Chertow, 2004). They evidence that symbionts can
sell their wastes and by-products, and are able to exclude and alienate
them from others. These resources are thuscurrently predominantly treated
as private property with the relevant symbionts as full owners in Schlager-
Ostrom terms. Contracts and private property rights provide the certainty
and security that many companies require to minimize their risk in indus-
trial symbiosis.
The treatment and perception of property rights in gypsum are bothpri-
vate, but the treatment of steam as private property differs from the usual
perception of steam. Steam has been described as “the ultimate externality”
because it usually leaves the premises in the form of an atmospheric emis-
sion (Steenmans et al. 2017, 10). It is most often treated as res nullius, com-
parable to greenhouse gas emissions thatare produced by all symbionts but
over which no one claims full ownership. Either can currently be justified
legally. The steam is produced by and belongs to Ørsted, but usually its
form (and perceived lack of value) prevent entities from claiming full
Fig. 2. Kalundborg industrial symbiosis. Based on Kalundborg Symbiosis (2018).
5
This is the minimum number, as arguably furthersymbiotic exchanges exist. Forexample,
there is an H&M in Kalundbor g where households can return clothing waste for reuse, recov-
ery or recycling as part of their H&M garment collecting initiative (H&M 2018).
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
5
ownership. Even if steam was determined tobe res nullius, then the captur-
ing of it by Ørsted would be sufficient to apply Locke's labor theory –as
collecting is sufficient to constitute labor –and then still become private
property (Locke 1980).
The perception of private property rights facilitates symbiotic ex-
changes through enabling the commodification of wastes and by-
products; both wastes and by-products are perceived and treated as trad-
able economic goods of (monetary) value. This was evidenced during the
interviews with, for example, one interview participant stating that the ex-
changes are perceived as “quite a good business deal,”and another partic-
ipant that companies see waste as a good that “can be sold …or you can
[save] money by buying another company's waste.”
There is one exception to the above discussion on private property ex-
changes; the water supplied by Lake Tissø is state property to which other
legal entities (including individuals) are given access (e.g. fishing and sail-
ing) and withdrawal rights (e.g. for industrial symbiosis purposes). As state
property is a particular form of private property, the previous arguments
still apply. Some argue that water should instead be res nullius or commu-
nal property (as commodification of water is considered “inappropriate”)
(Clarke and Malcolm 2016, 121; see also: Malcolm and Clarke 2017), but
it would then still become private property as a result of Kalundborg Utility
mixing their labor with the water (Locke 1980).
3.2. Peterborough industrial symbiosis
A meeting in April 2015 between Peterborough Reuse Limited, Oppor-
tunity Peterborough (a not-for-profit company wholly owned by Peterbor-
ough City Council), and Masteroast Coffee Company Limited (a roasting
and packing facility) resulted in the initiation of a symbiotic system in Pe-
terborough, UK, repurposing coffee sacks and unwanted clothing into
bags. Currently, Masteroast provides Peterborough Reuse with more than
1400 hessian and jute sacks every week. The sacks are first cleaned and
processed before being sent to offenders and ex-offenders to cut into
shape. The materials are then turned into retail items (including reusable
bags) and log sacks for tree planting, the forest industry, and riverbank re-
inforcement against flooding by a group of local and predominantly long-
term unemployed, recent migrant, or stay-at-home women recruited and
trained by Peterborough Reuse and the UK Department of Work and Pen-
sions (Masteroast 2016). The retail bags are lined with excess fabric,
which is bought from local charity shops and in some instances received
as donations from households. This system is represented in Fig. 3.
As in Kalundborg, the hessian bag exchanges are mainly governed by con-
tracts, and symbionts have the complete bundle of Schlager-Ostrom rights
that mean they are private property. There are, however, instances where
the property rights are less clear-cut. Some excess fabric used by Peterbor-
ough Reuse for lining its retail bags were provided by individuals that
intended to discard the fabrics (i.e. waste according to the WFD), but had
not yet physically discarded them. In essence, they are the full owner in
Schlager-Ostrom terms, but do not exercise their power to exclude or alienate
others and only want to exercise their rights as authorized claimants. Accord-
ing to an interview participant, the actual full owners instead perceive the ex-
cess fabrics as communal property that the local community can access.
The divergence between legal reality and the perception of property rights
in excess fabrics is comparable to a scenario where neighbors place furniture
outside their house with the intention for it to be taken by another household.
But, English case law demonstrates that there are limits to this. For example,
individuals have faced or been threatened with prosecution in recovering
food waste from bins outside food stores (The Guardian 2014;BBC 2011),
even though recovering food for consumption from state-owned bins in public
spaces is considered acceptable despite also legally being private property of
the state (Steenmans and Malcolm 2020). Furthermore, in the English case
of Williams and Others v Phillips and Roberts and Others v Phillips (1957) dust-
menemployedbyawastemanagementcorporationwereconvictedofsteal-
ing goods from dustbins collected in the course of their duties, selling the
goods to dealers, and sharing the proceeds. Lord Goddard CJ (Williams and
Others v Phillips and Roberts and Others v Phillips, 1957,8)said:
If I put refuse in my dustbin outside my house, I am not abandoning it in
the sense that I am leaving it for anybody to take it away. I am putting it
out so that it may be collected and taken away by the local authority,
and until it has been taken away by the local authority it is my property.
Thus in England, where waste is left does not matter –whether curbside
or in dustbin –as the transfer of property does not occur until collected by
the intended entity. These examples demonstrate that there is no legal un-
certainty in relation to property rights, but that context, intention, and so-
cial norms affect the perception of property rights.
The perception of communal property rights in this case has been facil-
itative of industrial symbiosis, though not incentivized, as the motivation
was mainly social (the training of women) and environmental (prevent
‘wasted’hessian and jute sacks) (interview participants).
3.3. Rotterdam harbor industrial symbiosis
Previous research has focused on industrial symbiosis in the Rotterdam
port (e.g.B aas 1998, 2000;Baas and Boons 2004;Baas and Korevaar 2011).
Fig. 3. Peterborough industrial symbiosis. Based on interview data and Peterborough Reuse (2017).
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
6
First, there was the INdustrial EcoSystem (INES) Project, which was ex-
tended and re-labeled the INES Mainport Project (1999–2002). Between
2003 and 2010 the INES project was included in the R3: Sustainable enter-
prises project, together with the Sustainable Rijnmond and Energy 2010
programs, under which it faltered and was hardly known (Baas and
Korevaar 2011). Since 2007, the focus has been on the Rotterdam climate
Initiative (2018), which is a new development rather than a direct replace-
ment of INES asno evidence indicates that the Initiative was aware of INES.
The Rotterdam Climate Initiative is the umbrella framework under which
the Port of Rotterdam Authority, Deltalinqs, DCMR Environmental Protec-
tion Agency Rijnmond, and the City of Rotterdam collaborate to deliver a
sustainable world port city (Rotterdam Climate Initiative, 2018a).
A number of smaller projects have developed independently that focus
on circular approaches within the Rotterdam port –these are not a result of
the Initiative but fall within its scope. These are presented in Fig. 4. This
paper focuses on the Recycled Park Project and Verdraaidgoed.
The Recycled Park Project, launched by WHIM Architecture and the
RecycledIsland Foundation, aims to catch plastic waste –larger plastic frag-
ments rather than microplastics –in the New Meuse River in Rotterdam be-
fore it enters the North Sea. The plastic waste is then usedto build a floating
island on which there is a park for the Rotterdamcommunity touse. Three
litter traps have been developed and placed, and a 140m
2
prototype
recycled park is open to the public. The goal is to place eight plastic litter
traps in the river and expand the island to 190m
2
(Recycled Park 2018).
The islands have been durably built to counteract the plastic breaking
down in the water and contributing to the problem of microplastics
(Herranz 2018).
Recycled Park is an authorized user of the plastic litter in Schlager-
Ostrom terms, as they (together with everyone else in the world) can access
and withdraw littered plastics from the river. They are not authorized
claimants as they cannot manage the littered plastics in the New Meuse
River –they had to apply for the necessary permits to place the traps into
the river. The littered plastics are thus perceived as res nullius. Through
the labor of collecting and transforming plastic waste into an island,
RecycledPark becomes the authorized claimant as they manage the island.
Recycled Park could become a proprietor or full owner, but the aim is for
the island to be communal, so that everyone has the privilege to enter the
island and right not to be excluded or alienated.
These perceived property rights differ from the legal reality. Theplastic
litter has been unlawfully abandoned and littered, pursuant to the Dutch
Environmental Protection Act(Wet milieubeheer, 1979) and the Rotterdam
Waste Regulation (Afvalstoffenverordening Rotterdam, 2009).
6
Their most
recent previous legal owner therefore technically still owns the plastic litter
in the river. Given that in practice there is often no method of identifying
them, the plastic waste is instead perceived as res nullius. The absence of
property rights is a driver of industrial symbiosis in the case of the Recycled
Park; if littered plastics were treated asprivate property, they would not be
retrieved from the river before entering the sea from where retrieval is
more expensive (Jambeck et al. 2015).
More typical of the industrial symbiosis is the example of
VerdraaidGoed, as part of which reusable bags are made from residual ma-
terials such as old flags, promotion banners, and shop window canvas
drapes similar to the Peterborough example (VerdraaidGoed 2018). House-
holds have been full owners and used their alienation right to transfer man-
agement to VerdraaidGoed. Private property in such examples therefore
enables the symbiotic exchanges (as in Kalundborg and Peterborough).
These are often motivated by environmental reasons rather than economic,
as there is not always monetary value attached to these exchanges.
Fig. 4. Rotterdam industrial symbiosis. The dotted lines indicate that theproject is still being developed –ranging from the conceptual to piloting stages. Developedbased on
interview data and Rotterdam Climate Initiative (2018b).
6
Chapter 10(25) of the Dutch Environmental Protection Act states that regulations may be
made to preventlittering, whichare enacted in Rotterdamby the Rotterdam WasteRegulation
with paragraph 4 setting out the unlawfulness of littering for Rotterdam.
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
7
4. Discussion
The case study findings on property rightsare collated in Table 2.Across
all case studies, property regimes had received little or no explicit thought
by interview participants and extant literature prior to this study, despite
being inherent in industrial symbiosis exchanges.
There is no one-size-fits-all approach to property rights across the case
studies to facilitate symbiotic exchanges; property regimes are flexible
and hence allow for case specificity. Where the exchanges occur between
businesses, the exchanges are generally private, with one notable exception
of steam in Kalundborg as a result of the nature and form of the resource.
Two of the exchanges involving consumers (i.e. unwanted clothingin Peter-
borough and plastic litter in Rotterdam) seem to allow different property
rights (communal and res nullius respectively) based on the perceived real-
ity. It was the desire to enact environmental and social benefits, specifically
preventing waste ending up in landfill or the sea, and providing skills and
work for specific social groups, that motivated the exchanges. These expe-
riences contrast with the Kalundborg industrial symbiosis where exchanges
were mainly motivated by economic factors (Jacobsen 2002; Sterr and Ott
2004; interview participants) and where waste is viewed as a commodity.
Perhaps unsurprisingly, some interview participants in the Peterbor-
ough and Rotterdam case studies stated that private property rights can
be a barrier because they dictate what and how property can be considered
and legally transferred –e.g. “[private property rights are] I suspect, one of
the main barriers actually for people to move on”(Peterborough interview
participant). In Rotterdam, plastic litter would not be retrieved from the
river if it was perceived as private property, whereas perceived res nullius
property rights were identified as potentially helping “create conditions
for industry to progress”towards circular economies (Rotterdam interview
participant). A similar argument can be made in Kalundborg; if property
rights were not perceived as private, the economic incentive would not be
present to initiate the exchange. In general, the perceived property rights
were therefore facilitative mechanisms across the case studies, as they nei-
ther directly incentivize nor motivate the exchanges to occur, but also did
not prevent them, with the actual property rights in some cases presenting
a possible barrier.
Overall, the case studies thus simultaneously demonstrate that existing
property regimes can be facilitative, but that their potential as outright in-
centives is not yet maximized. They still remain very much in the back-
ground of any discussion. To realize their incentivizing capabilities,
changes in the law can and arguably should be implemented to make
waste producers andholders aware of how waste can andshould be sustain-
ably managed to achieve circular economy and resource efficiency goals.
A possible legislative mechanism is identified in Article 8 of the WFD:
Extended Producer Responsibility (EPR) (though the link with property
rights is not made explicit in this provision). EPR shifts responsibility for
waste management from the entities traditionally responsible –consumers
and authorities –to the producers of products. EPR can exist in different
forms: physical responsibility where the producer is responsible for the
physical end-of-life management of its products (i.e. product take-back pro-
grams); economic responsibility where the producer covers all or part of the
financial costs for end-of-life management of its products; liability where
the producer bears responsibility for environmental damages by the prod-
uct; and informative responsibility where the producer provides informa-
tion on the product and its environmental effects across the life-cycle
stages (Lindhqvist 2000; see also Steenmans 2019 for an overview of EPR
within the EU WFD).
Property rights can be used to implement EPR measures, though further
investigation is needed, which is beyond the scope of this study. Private
property rights are commonly suggested as a mechanism for facilitating
physical responsibility; producers may lease products, so that they retain
ownership and the product is returned to them at the end of its life cycle
(e.g. Clift 1997). The possible contribution of otherpropertyrights to phys-
ical responsibility, and the possible relationships between property rights
and the other types of responsibility generally are not yet explored. Per-
haps, producers could remain authorized claimants of products so that
Table 2
Comparison of property rights in case studies.
Resource Resource type
a
Exchange Perceived
v
actual
reality
Schlager-ostrom taxonomy Property regime Impact
Waste By-product Business-to-business Consumer-to-business Authorized
entrant
Authorized
user
Authorized
claimant
Proprietor Full
owner
Communal Private Res
nullius
State Incentive Facilitative
mechanism
Barrier Opportunity
Kalundborg
Gypsum ✓✓ Perceived ✓✓✓✓✓ ✓ ✓
Actual ✓✓✓✓✓ ✓ ✓
Steam ✓✓ Perceived ✓✓✓✓✓ ✓ ✓
Actual ✓✓✓ ✓ ✓
Peterborough
Hessian
bags
✓✓ Perceived ✓✓✓✓✓ ✓ ✓
Actual ✓✓✓✓✓ ✓ ✓
Unwanted
clothing
✓✓Perceived ✓✓✓ ✓ ✓
Actual ✓✓✓✓✓ ✓ ✓
Rotterdam
Plastic
litter
✓✓Perceived ✓✓✓ ✓ ✓
Actual ✓✓✓✓✓ ✓ ✓
Recycled
textile
waste
✓✓Perceived ✓✓✓✓✓ ✓ ✓
Actual ✓✓✓✓✓ ✓ ✓
a
Based on interview participants' perspectives and application of the WFD definition.
K. Steenmans Current Research in Environmental Sustainability 3 (2021) 100030
8
they can manage them to ensure resource- and cost-effectiveness. Further
research in this area should also cover property rights in relation to extend-
ing EPR to producer ownership schemes (e.g. UCL ISR and Systemiq 2019)
and recasting EPR as pre-market producer responsibility in order to limit
market access to durable, reparable, and reusable products (Maitre-Ekern
2021).
The potential of property rights in incentivizing industrial symbiosis is
also recognized in practice; one interview participant noted the potential
positiveimpact of private property rights and resultant economic incentives
if one of the forms of extended producer responsibility is applied:
If [companies] just lease the product instead of selling it …But, most
people are not there yet because you need to see the value for that …
you need to see where is your incentive, and for manufacturers it is
mainly economic.
Communal property regimes can also be adopted to encourage more in-
dustrial symbiosis networks –either open access for everyone or limited to
adefined group of entities and individuals.A community could have shared
responsibility for the management of pooled waste and by-products, while
also having the opportunity and privilege to consume it. Environmentally
responsible entities within the community could then interfere with others'
waste and by-products to ensure that they are managed properly. Commu-
nal property could, however, equally result in others using or managing
wastes and by-products in an environmentally detrimental fashion,
whether intentionally or negligently. Laws can and should be enacted to
avoid such outcomes –these should be explored in further research. Simi-
larly, res nullius property requires support by laws to ensure resources are
managed effectively.
5. Conclusions
Industrial symbiosis has been identified as a conducive strategy for pro-
moting and achieving a number of EU resource efficiency and circular econ-
omy policy goals (see Section 1), as well as international aims, such as the
United Nations Sustainable Development Goals (Schroeder et al. 2019;
Cecchin et al. 2020). There have therefore beencalls for widespread imple-
mentation of industrial symbioses, but further research is needed on how
this can be facilitated. This paper has contributed to this research gap by ex-
amining the role of property rights in enabling industrial symbiosis.
Property rights in waste and by-products need careful thought and con-
sideration in different contexts, as they can affect how waste is conceived
and treated. Yet, property rights are currently not consciously engaged
with or used to incentivize development of industrial symbiosis practices.
Four possible property regimes were presented (private, state, commu-
nal, and res nullius) and there is evidence that all four can have positive en-
abling effects on industrial symbiosis.Private property regimes canresult in
the commodification of waste and see it treated as an economic good of
value as in Kalundborg and Peterborough, but simultaneously a monetary
incentive is not always necessary to achieve a private exchange for environ-
mental purposes as in Rotterdam. Only the perception of a resnullius prop-
erty regime was encountered in practice in Rotterdam. It resulted in certain
stakeholders taking initiative to turn waste into something of value. Simi-
larly, there was also only the perception of communal property rights that
again enabled certain stakeholders to turn waste into a product perceived
to have value. Finally, there was evidence of state property (Lake Tissø in
Kalundborg and municipal solid waste in Peterborough), but these were
not the main focus and require further examination.
There is currently no evidence to suggest that any of the three alterna-
tive property regimes is more conducive to promoting industrial symbiosis.
It is therefore recommended that any contemporary selection of property
rights is context dependent. The current EU context appears more favorable
to private property regimes as they are central to the existing capitalist
economy (e.g. Screpanti 1999), whereas communal property regimes
would require a more fundamental shift in thinking about waste as a collec-
tive responsibility. Whichever property regime is intended to produce
incentivizing effects wouldneed further implementation of legal structures,
as currently their potential is not being harnessed.
Questions remain on, for example, the responsibilities and duties the
state should have in relation to wastes and by-products; whether communal
ownership should be limited to a defined community (limited access) or in-
clude everyone in the world (open access); the legal and regulatory frame-
works required to support and complement property regimes to ensure the
desired resource management; and the impacts of the WFD's end-of-waste
definition. In particular, further research is needed to explore the effects
of all property regimes to elucidate their suitability as property regimes
for incentivizing and facilitating replicability of industrial symbiosis and
circularity. Such research needs to be complemented by investigations of
law and policy tools that are dependent on the existence of a particular
property regime and require or nudge waste producers or holders to man-
age waste in a particular manner by assigning particular duties. Examples
of such mechanisms include product take-back programs, EPR, and other
types of producer ownership schemes (e.g. UCL ISR and Systemiq 2019).
Declaration of Competing Interest
The authors declare that they have no known competing financial inter-
ests or personal relationships that could have appeared to influence the
work reported in this paper.
Acknowledgements
Thank you to Dr. Ine Steenmans, Dr. Phillip Taylor, and Lore Steenmans
for their comments and suggestions.
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