• such as the RECLAIM system in Los Angeles, the limit declines by a fixed percentage over time (Fromm and Hansjurgens, 1996).
  •  Whereas IFQs are normally defined in terms of a percentage share of the TAC, for air pollution the quota is typically defined in terms of an authorization to emit a specific number of tons in a given year.
  •  Air quota programs share with some IFQ programs the characteristic that some of the rent created by the quota program is transferred to the larger community, but the sharing may occur in rather different ways. In the Alaskan IFQ programs, this sharing is accomplished by community development quotas. In the ozone-depleting gas program, rent is transferred by means of a tax on the activity authorized by the quota; the revenue goes to the general treasury (Tietenberg, 1990).

Transferable quotas to control air pollution have a sufficiently different purpose than IFQs that experience with them is certainly not automatically relevant for evaluating IFQs. On the other hand, such experience does provide a potentially useful source of ideas on some of the issues with which this report must grapple.

Surface Water

Property rights can be acquired in surface water, but unlike those in land and tangible things, they are characterized as usufructory 22 in nature, more limited to begin with and subject to a greater reach of the police power. In United States v. Gerlach Live Stock Co.,23 the U.S. Supreme Court characterized these rights as follows:

As long ago as the Institutes of Justinian, running waters, like the air and the sea, were res communes—things common to all and property of none. Such was the doctrine spread by civil-law commentators and embroidered in the Napoleonic Code and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr. Justice Story drew in generating the basic doctrines of American water law.

These principles are essentially the same for both riparian and appropriative rights.24 The principal difference between the two systems, of course, is that riparian rights arise from ownership of the land adjacent to the water source,


A usufructory right is the right to use something in which one has no property, that is, the right to take the fruits of property owned by another. The owner of surface waters is the public.


339 U.S. 725, 744-45 (1950).


Cf. Tyler v. Wilkinson, 24 Fed. Cas. 472 (C.C.D.R.I. 1827), Vernon Irrigation Co. v. Los Angeles, 106 Cal. 237, 39 P. 762 (1895).

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