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LIBERTY, PROPERTY, ENVIRONMENTALISM

  • Carol M. Rose (a1)

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1 See Blackstone, William, Commentaries on the Laws of England (1766; Chicago and London: University of Chicago Press, 1979), 2:14–15 (attributing otherwise unowned things to the ownership of the “sovereign”).

2 Hardin, Garrett, “The Tragedy of the Commons,” Science 162, no. 3859 (1968): 1243–48.

3 The first national park was Yellowstone, reserved in 1872. For a brief history of federal park reservations and related wilderness protection in the United States, see Coggins, George Cameron, Wilkinson, Charles F., Leshy, John D., and Fischman, Robert L., Federal Public Land and Resources Law, 6th ed. (New York: Foundation Press, 2007), 1009–13. For the general pattern of command-and-control legislation in the generation after 1970 and the more recent move to market-oriented regulation, see Rose, Carol M., “Environmental Law Grows Up (More or Less), and What Science Can Do to Help,” Lewis and Clark Law Journal 9 (2005): 273–94. For the specifics of turtle exclusion devices (TEDs), for which the United States' requirements have encountered international opposition on free-trade grounds, see Cavros, George, “The Hidden Cost of Free Trade: The Impact of United States World Trade Organization Obligations on United States Environmental Sovereignty,” ILSA Journal of International and Comparative Law 9 (2003): 563, 564–65.

4 For a summary and analysis of congressional legislative proposals as of late 2007 and some comparisons with European efforts, see Flatt, Victor B., “Taking the Legislative Temperature: Which Federal Climate Change Proposal is ‘Best’?Northwestern University Law Review Colloquy 102 (2007): 123–50.

5 See Amano, Mashiro and Sedjo, Roger A., “Forest Sequestration: Performance in Selected Countries in the Kyoto Period and the Potential Role of Sequestration in Post-Kyoto Agreements” (2006), http://www.rff.org/Documents/RFF-Rpt-ForestSequestrationKyoto.pdf. See also Rose, Carol M., “Big Roads, Big Rights: Varieties of Public Infrastructure and Their Impact on Environmental Resources,” Arizona Law Review 50, no. 2 (2008): 409–43.

6 See Hardin, “Tragedy of the Commons.” For an earlier and more precise treatment by a resource economist, see Gordon, H. Scott, “The Economic Theory of a Common Property Resource: The Fishery,” Journal of Political Economy 62, no. 2 (1954): 124–42.

7 Ophuls, William, Ecology and the Politics of Scarcity (San Francisco: W. H. Freeman, 1977), 147–56.

8 Krier, James E., “The Tragedy of the Commons, Part II,” Harvard Journal of Law and Public Policy 15 (1992): 325, 336–38.

9 Blackstone, Commentaries, 2:2–11.

10 Demsetz, Harold, “Toward a Theory of Property Rights,” American Economic Review Papers and Proceedings 57, no. 2 (1967): 347–58.

11 Anderson, Terry L. and Hill, P. J., “The Evolution of Property Rights: A Study of the American West,” Journal of Law and Economics 18, no. 1 (1975): 163–79.

12 See Cox, Susan Jane Buck, “No Tragedy of the Commons,” Environmental Ethics 7 (Spring 1985): 4961 (illustrating the absence of “tragedy” on the medieval common fields). See also Smith, Henry E., “Semicommon Property Rights and Scattering in the Open Fields,” Journal of Legal Studies 29, no. 1 (2000): 131–69 (describing and offering an economic analysis of the elaborate medieval village systems for scattering individual fields and rotating them in and out of common grazing usage). Smith reports that there is some evidence that particular commons originated with individual farmers who agreed to “common” their holdings.

13 Ellickson, Robert C., Order without Law: How Neighbors Settle Disputes (Cambridge, MA: Harvard University Press, 1991), 177–83. For a variety of examples, see Ostrom, Elinor, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990). For specific examples, see Netting, Robert McC., Balancing on an Alp: Ecological Change and Continuity in a Swiss Mountain Community (Cambridge and New York: Cambridge University Press, 1981) (community grazing); Trawick, Paul B., The Struggle for Water in Peru: Comedy and Tragedy in the Andean Commons (Stanford, CA: Stanford University Press, 2003) (community irrigation); Acheson, James M., The Lobster Gangs of Maine (Hanover, NH: University Press of New England, 1988) (fishing community); and Merges, Robert P., “Property Rights Theory and the Commons: The Case of Scientific Research,” Social Philosophy and Policy 13, no. 2 (1996): 145–67.

14 See, e.g., Dean, Warren, With Broadax and Firebrands (Berkeley, Los Angeles, and London: University of California Press, 1995) (describing the long decimation of the Brazilian Atlantic Forest); Hamer, Joshua, “A Prayer for the Ganges: Across India, Environmentalists Battle a Tide of Troubles to Clean Up a River Revered as the Source of Life,” Smithsonian 38, no. 8 (November 1, 2007): 74 (describing the extreme pollution of the Ganges); and Wise, William, Killer Smog: The World's Worst Air Pollution Disaster (Chicago: Rand McNally, 1968) (recounting London's smog attack in the 1930s).

15 This is not to say that property regimes do not sometimes exclude particular persons from taking ownership roles. Notable historical examples in U.S. society are slaves and married women, neither of which group was allowed to own property in the past. In other societies, there have been classes of the non-elite for whom some resources were tabu or kapu, as in Hawai'i until some years into the nineteenth century. Absence of ownership rights keeps these persons in dependent or subordinate roles. Nevertheless, even dependent persons are part of the property regime's system of obligations—they are not to disrupt the property of others. For property regimes as a source of obligations on all participants, see Penner, J. E., The Idea of Property in Law (Oxford and New York: Oxford University Press, 1997), 2527.

16 McCay, Bonnie J., “Emergence of Institutions for the Commons: Contexts, Situations, and Events,” in Ostrom, Elinor et al. , eds., The Drama of the Commons (Washington, DC: National Academy Press, 2002), 361, 370–71.

17 At the local point of the kill, whalers adopted different rules for ownership of speared whales. Sometimes the right to the carcass was allocated to the whalers who successfully killed the animal and tagged it with a waif-pole; but for more dangerous whale species, where the first approach was particularly perilous, property in the carcass was allocated to the first whalers to cast a spear that the whale could not throw off, even if the kill were completed by others. Other participants in the hunt received various forms of compensation for their contributions. All these local rules aided any particular hunt, but did not address and may have exacerbated the larger issue of overhunting by all whalers. See Ellickson, Order without Law, 196–206.

18 For the locus classicus of this argument, see Coase, Ronald H., “The Problem of Social Cost,” Journal of Law and Economics 3, no. 1 (1960): 144.

19 For an exploration of distributional conflicts that may delay new or revised property regimes, see Libecap, Gary, Contracting for Property Rights (Cambridge: Cambridge University Press, 1989); see also Cooter, Robert, “The Cost of Coase,” Journal of Legal Studies 11, no. 1 (1982): 133. The question of fairness and desert, for example, undoubtedly affected popular attitudes toward Russia's newly wealthy “oligarchs” and cleared the way for President Vladimir Putin's prosecution of these entrepreneurs. See Rose, Carol M., “Privatization—The Road to Democracy?Saint Louis University Law Journal 50, no. 3 (2006): 691, 707.

20 Hague v. Wheeler, 27 A. 714 (Pa. 1893).

21 Farnsworth, Ward, “Do Parties in Nuisance Cases Bargain after Judgment? A Glimpse Inside the Cathedral,” University of Chicago Law Review 69 (1999): 373436 (describing the dearth of bargaining after nuisance suits are settled in favor of one party or the other).

22 See Wyman, Katrina, “From Fur to Fish: Reconsidering the Evolution of Private Property,” New York University Law Review 80, no. 1 (2005): 117, 193–97 (describing some of the conflicts over allocation of fishing rights); see also Tom Tietenberg, “The Tradable Rights Approach to Protecting the Commons: What Have We Learned?” in Ostrom et al., eds., The Drama of the Commons, 197, 208–9.

23 Libecap, Contracting for Property Rights, 21–23.

24 Hsu, Shi-ling, “Fairness vs. Efficiency in Environmental Law,” Ecology Law Quarterly 31 (2004): 303, 375–76, notes that uniform restrictions on technology predate market-based regulations because they seem more fair and raise fewer objections. For “derby” or “olympic” fishing practices, see Tipton, Carrie A., “Protecting Tomorrow's Harvest: Developing a National System of Individual Transferable Quotas to Conserve Ocean Resources,” Virginia Environmental Law Journal 14 (1995): 381, 391–95.

25 Hsu, “Fairness vs. Efficiency,” 370, notes with respect to air pollution control that a coal-burning plant in one location might more cheaply burn low-sulfur coal, whereas another plant elsewhere would install exhaust pipe scrubbers; a uniform technology requirement to install scrubbers favors the latter over the former. Similarly, it is more difficult to meet uniform air quality standards in a heavily populated inversion area like Los Angeles than in a windswept and lightly populated area like the western plains. On this issue, see Krier, James E., “The Irrational National Air Quality Standards: Macro- and Micro-Mistakes,” UCLA Law Review 22, no. 1 (1974): 323–42.

26 Ostrom, Governing the Commons, 73–74.

27 For these and other pros and cons of community-based management regimes, see Carol M. Rose, “Common Property, Regulatory Property, and Environmental Protection: Comparing Community-Based Management to Tradable Environmental Allowances,” in Ostrom et al., eds., The Drama of the Commons, 233–57.

28 Fitzpatrick, Daniel, “Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access,” Yale Law Journal 115 (2006): 9961048; for African examples, see pp. 1041–42.

29 Alston, Lee J., Libecap, Gary D., and Mueller, Bernardo, Titles, Conflict, and Land Use: The Development of Property Rights and Land Reform on the Brazilian Amazon Frontier (Ann Arbor: University of Michigan Press, 1999), 17, 22–25, 176–77, 202.

30 For a very modest sampling of the literature on the generation of legalistic rules among gold rush miners, see Umbeck, John, “The California Gold Rush: A Study of Emerging Property Rights,” Explorations in Economic History 14, no. 3 (1977): 197226; Zerbe, Richard O. and Anderson, C. Leigh, “Culture and Fairness in the Development of Institutions in the California Gold Fields,” Journal of Economic History 61, no. 1 (2001): 114–43; and McDowell, Andrea, “Real Property, Spontaneous Order, and Norms in the Gold Mines,” Law and Social Inquiry 29, no. 4 (2004): 771818.

31 McEvoy, Arthur F., The Fisherman's Problem: Ecology and Law in the California Fisheries (Cambridge: Cambridge University Press, 1986), 44, 47–48.

32 See, e.g., Schorr, David B., “Appropriation as Agrarianism: Distributive Justice in the Creation of Property Rights,” Ecology Law Quarterly 32, no. 3 (2005).

33 For rights-definition issues in water and their impact on instream flows, see Rose, Carol M., “From H2O to CO2: Lessons of Water Rights for Carbon Trading,” Arizona Law Review 50, no. 1 (2008): 91110; for some of the practical issues, see Neuman, Janet, “The Good, the Bad, and the Ugly: The First Ten Years of the Oregon Water Trust,” Nebraska Law Review 83 (2004): 432–84.

34 Lueck, Dean, “Property Rights and the Economic Logic of Wildlife Institutions,” Natural Resources Journal 35 (Summer 1995): 625–28, 635–44.

35 Libecap, Gary D. and Wiggins, Steven N., “Contractual Responses to the Common Pool: Prorationing of Crude Oil Production,” American Economic Review 74, no. 1 (1984): 8798.

36 Smith, Henry, “The Language of Property: Form, Context, and Audience,” Stanford Law Review 55 (April 2003): 1105–91. See also Rose, Carol M., “Property and Language,” Yale Journal of Law and the Humanities 18, no. 1 (2006): 128.

37 See Rose, “Big Roads, Big Rights.”

38 Merrill, Thomas W. and Smith, Henry E., “Optimal Standardization in the Law of Property: The Numerus Clausus Principle,” Yale Law Journal 110, no. 1 (2000): 170.

39 Salzman, James and Ruhl, J. B., “Currencies and the Commodification of Environmental Law,” Stanford Law Review 53 (2000): 607, 637.

40 Wainger, Lisa, King, Dennis, Salzman, James, and Boyd, James, “Wetland Value Indicators for Scoring Mitigation Trades,” Stanford Environmental Law Journal 20 (2001): 413–78. For a more general discussion of the issues of valuation, see Salzman, James, “Valuing Ecosystem Services: Notes from the Field,” New York University Law Review 80 (2005): 870961. The chief U.S. legislation allowing trades is the Clean Water Act (Federal Water Pollution Control Act, 1972), sec. 404, which protects wetlands but under certain circumstances permits unavoidable damage to wetlands, so long as the damage is offset by wetlands created elsewhere. See Salzman, “Valuing Ecosystem Services,” 908–9.

41 Salzman, “Valuing Ecosystem Services,” 909–10.

42 Dahlman, Carl J., The Open Field System and Beyond: A Property Rights Analysis of an Economic Institution (Cambridge and New York: Cambridge University Press, 1980), 153–70.

43 Cronon, William, Nature's Metropolis: Chicago and the Great West (New York: W. W. Norton, 1991), 97102, 151–55, 200–204, 213–25.

44 See Esty, Daniel C., “Bridging the Trade-Environment Gap,” Journal of Economic Perspectives 15, no. 1 (2001): 113, 115, 119 (describing the “Kuznets curve” of worsening followed by improving environmental protection over the course of new economic development).

45 Harris, Paul G., “Common but Differentiated Responsibilities: The Kyoto Protocol and United States Policy,” New York University Environmental Law Journal 7 (1999): 2748.

46 For background about the Kyoto Protocol as well as extensive up-to-date information on this and other efforts to deal with climate change, see the Pew Center on Global Climate Change Web site, http://www.pewclimate.org. The chief features of the Kyoto Protocol are that during the period 2008–2012, it requires developed countries to reduce greenhouse gas emissions by an average of 5.12 percent below 1990 levels, with further reductions to be negotiated in later rounds; it permits compliance via emission trades; it also permits emitters in developed countries to offset their own emissions by undertaking projects in LDCs that reduce GHGs there below the emission levels that would have otherwise occurred (the “additionality” requirement).

47 Yandle, Bruce and Buck, Stuart, “Bootleggers, Baptists, and the Global Warming Battle,” Harvard Environmental Law Review 26, no. 1 (2006): 177, 217–19.

48 Ibid., 221–23.

49 Ackerman, Bruce A. and Stewart, Richard B., “Reforming Environmental Law,” Stanford Law Review 37 (1955): 1333, 1341–42.

50 Flatt, , “Taking the Legislative Temperature,” 143. Keith Bradsher, “Outsize Profits, and Questions, in Effort to Cut Warming Gases,” New York Times, December 21, 2006, A1, describes a notorious example in which payments were made to dismantle a Chinese air-conditioning chemical production plant, but were then applied to the expansion of the manufacturing operation.

51 For example, Ball, Jeffrey, “The Carbon-Neutral Vacation,” Wall Street Journal, July 28, 2007, P1, P5–6, describes resorts that offer varying strategies for carbon-neutrality, including investment in “offsets” in vaguely defined carbon sequestration projects.

52 Flatt, “Taking the Legislative Temperature,” 135–38.

53 Guruswamy, Lakshman, “Integrating Thoughtways: Reopening of the Environmental Mind?Wisconsin Law Review (1989): 463, 490–92, notes some early cases in which the cross-boundary pollution issue, including scrubber sludge disposal, was raised but dismissed.

54 Amano and Sedjo, “Forest Sequestration,” 8–9, 31–32 (describing narrow forestry credits actually allowed for trade credit under Kyoto Clean Development Mechanism). On new verification technology, as well as increased concern to permit credits for existing forests, see Wright, Tom, “New Tool May Help in Fight to Curb CO2: Radar Enables Better Monitoring of Commitments to Preserve Forests,” Wall Street Journal, January 3, 2008, B3.

55 Rose, “From H2O to CO2: Lessons of Water Rights for Carbon Trading,” 91, 104.

56 Salzman and Ruhl, “Currencies and the Commodification of Environmental Law,” 627–30.

57 Scarborough, Brandon, “Trading Forest Carbon: A Panacea or Pipe Dream to Address Climate Change?” PERC Policy Series PS-40 (July 2007): 7–10, 20.

58 Caldeira, Ken, “When Being Green Raises the Heat,” New York Times, January 16, 2007, A21.

59 Penner, The Idea of Property in Law, 75.

60 Zerbe and Anderson, “Culture and Fairness,” 133–35. Zerbe and Anderson call the game a “chicken/hawk” game rather than a “dove/hawk” game, but the game is the same.

61 Two contributions in The Question of the Commons: The Culture and Ecology of Communal Resources, ed. McCay, Bonnie J. and Acheson, James M. (Tucson: University of Arizona Press, 1988) sharply question the idea that community-based resource regimes are conservation-oriented in any systematic way: Raymond Hames, “Game Conservation or Efficient Hunting?” 92–107; and James G. Carrier, “Marine Tenure and Conservation in Papua New Guinea,” 142–67. Rose, “Common Property, Regulatory Property, and Environmental Protection,” 233, 248–50, describes some of the weaknesses of traditional community-based regimes with respect to commerce—including communities with some conservationist practices.

62 Rieser, Alison, “Property Rights and Ecosystem Management in U.S. Fisheries: Contracting for the Commons?Environmental Law Quarterly 24 (1997): 813, 830–32, approvingly describes the allocation of fishing quotas to some Alaskan native communities. See also Tierney, John, “A Tale of Two Fisheries,” New York Times Magazine, August 27, 2000, 38. Among other things, the latter describes the way in which holders of individual tradable fishing quotas in Australia have come together to form a new common-property regime for managing the tuna fishery.

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