. "7 Common Property, Regulatory Property, and Environmental Protection: Comparing Community-Based Management to Tradable Environmental Allowances." The Drama of the Commons. Washington, DC: The National Academies Press, 2002.
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The Drama of the Commons
nity-based resource management can offer models for efficient and sustainable resource use.
Given the surge of interest in community-based resource regimes, it is curious that their institutional structures do not appear more frequently in legal proposals for the improvement of environmental regulation. This is not because legal scholars are unaware of the literature on community-based common property. Although CBMR scholars for the most part appear to be untouched by legal scholarship, the reverse is not true; legal scholars regularly cite the major studies in a number of contexts, from intellectual property (Merges, 1996) to the burgeoning literature on informal norms (Ellickson, 1991). The legal scholarship on the Internet in particular has drawn analogies to the bottom-up community self-organization that has emerged in much older common resource regimes (Rose, 1998). Nevertheless, aside from a handful of scholars (Bosselman, 1996; Rieser, 1997; Rose, 2000), few in the legal academy have paid much attention to community-based management institutions as potential engines to drive improved environmental regulation.
Instead, among legal scholars, the poster children of proposed environmental improvement are a new version of individual entitlements that I will call tradable environmental allowances (TEAs). In TEA regimes, governmental regulators in effect place an upper limit or cap on the total quantity of a given resource that is to be available for use, whether the “use” is extractive or polluting. The regulators then divide the capped total into individual allowances. Henceforth they require all resource users to purchase or trade for whatever allowances they use.
TEAs along this model already have been deployed, to great applause, for the regulation of sulfur dioxide pollution in the United States; they have been used to manage fisheries in Australia, New Zealand, and elsewhere; and they are under much discussion as an element of future international regimes to control greenhouse gases (Rieser, 1997; Stavins, 1998; Tietenberg, 1985; Tietenberg, this volume:Chapter 6).
At least in theory, each TEA regime transforms access to the resource in question into a divisible but finite total quantity, and each individual resource user must pay for every pound of pollution released into the atmosphere or every pound of fish landed; resource use thus becomes in effect a kind of private property that must be acquired through purchase and trade. The property-like characteristics of TEAs are at the heart of their attractiveness. As has been so often argued about more conventional private property, the underlying idea is that if resource users are confronted with the need to purchase TEAs, they will husband resources carefully and will undertake conservation or innovation to substitute for their now expensive resource use (Ackerman and Stewart, 1988; Kriz, 1998; Rose, 1994; Tipton, 1995).
Although TEAs do not entirely vindicate the Hardin/Ophuls view that the choice for governing structures lies either with private property or with Levia-