The Drama of the Commons (2002) / Chapter Skim
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7 Common Property, Regulatory Property, and Environmental Protection: Comparing Community-Based Management to Tradable Environmental Allowances
7 Common Property, Regulatory Property, and Environmental Protection: Comparing Community-Based Management to Tradable Environmental Allowances
Pages 233-258
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From page 233... ...
Our newspapers are full of stories of the human impact on what might be otherwise fondly thought of as pure "nature," from the ocean depths through the remotest forests to the skies above; the consequences of human agriculture, transportation, manufacture, and resource extraction affect even the most seemingly inaccessible corners of the globe. Because no part of the world's environment is untouched by human activity, environmental protection must be seen in large measure as a matter of human social organization.
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From page 234... ...
Indeed, Hardin's dominating example of the medieval common fields was not tragic at all, but was rather an example of a set of community-based sustainable agricultural practices that lasted for centuries, if not millennia (Cox, 1985; Dahlman, 1980; Ostrom, 1990; Rieser, 1999; Smith, 2000~. As the first chapter of this book notes, there has been considerable variety in the nomenclature that refers to such limited common resources and the community governance processes that manage them, but for purposes of this chapter, I will refer to community-based management regimes for common property resources as "CBMRs." I use this term to convey what I hope is a subtly greater attention to governance institutions and practices, rather than to the commonpool resources that underlie them; obviously, however, the physical and the institutional are intertwined no doubt giving rise to the difficulties in nomenclature.
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From page 235... ...
, few in the legal academy have paid much attention to communitybased 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)
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From page 236... ...
And finally, both types of regime are fundamentally property regimes individual property in the case of TEAs, common property in the case of CBMRs; in neither case are resources open to the world at large, but are rather treated as the domain of their respective individual or common owners. Beyond those basics, however, CBMR and TEA regimes often diverge dramatically, so much so that one can see them as alternative ideal types for very different approaches to property-based environmental management.
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From page 237... ...
One caveat: It is important to bear in mind that the community-based common property regimes that are best known are often of long duration, which means that they are apt to be quite traditional, whereas TEA regimes tend to be quite new; this is a factor that can in itself accentuate differences between these regimes. A second caveat runs in the opposite direction: Real life being a more blurred affair than are any "ideal types," one finds in practice that more-or-less community-based regimes sometimes share characteristics with more-or-less tradable allowance regimes.
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From page 238... ...
Many CBMRs have been studied in the context of a burgeoning "new institutional economics," a line of scholarship concerning nongovernmental social problem solving of all sorts, and this scholarship suggests some reasons for the generally small scale of community management institutions. An emerging consensus suggests that human beings can overcome PD problems, including the e-person PDs in the form of the "tragedy of the commons"; indeed, this is one of the chief lessons of new common property scholarship.
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From page 239... ...
Perhaps it is for this reason that aside from irrigation, there are few examples of wider scale, nested community management institutions, at least on a self-organizing basis. This is not to say, of course, that larger governmental institutions might not intervene to organize "nested" CBMRs, as Agrawal and Ribot (1999)
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From page 240... ...
If, as Ostrom argues, the key to larger scale community resource management is institutional structure, and if, as Snidal argues and as Berkes (this volume:Chapter 9) describes, community regimes have already relied on larger governments for coordination and enforcement, then TEAs might offer an interesting institutional structure for that coordination, a kind of "nesting" of CBMRs through marketorganized institutions.
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From page 241... ...
To be environmentally friendly, both TEA regimes and CBMRs must contemplate some constriction on allowable use, that is, constriction to a level that is compatible with renewability of a whole complex network of resources in which the target resource is embedded. Thus the complexity and interactiveness of environmental resources brings us back to an subject mentioned earlier: What is the appropriate level of use, the total "take" or cap on any given environmental resource?
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From page 242... ...
Moreover, rollback can be quite effective to reduce total use; for example, the United States' acid rain control legislation, which instituted TEAs in sulfur dioxide, cut total sulfur dioxide production by quite substantial amounts (Schmalensee et al., 1998~. All the same, rollback can hardly be called adaptive management.
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From page 243... ...
But the problems do suggest that TEA regimes may be insufficiently responsive where environmental resources are most densely interactive, complex, and fluctuating; recent commentators, for example, note the difficulties of applying TEAs to the densely interactive resources of wetlands (Salzman and Ruhl, 2000~. Related enforcement problems also derive from the necessarily relatively simple rights structures of TEAs.
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From page 244... ...
For example, Swiss grazing villages limit the right of any resident to "common" more sheep than the resident can feed over the winter; this is a rule that limits individual usage of the common fields and roughly calibrates consumption to the forage available (Netting, 1981~. Irrigation communities also carefully adjust individual water appropriation to seasonal water levels (Ostrom, 1990, 1992; Maass and Anderson, 1978~.
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From page 245... ...
Indeed, the very activities that clean up pollution within a community could exacerbate pollution elsewhere, as in pouring wastes into a river or stream. TEAs, on the other hand, are typically organized by larger governmental bodies, and they are aimed precisely at controlling external effects of the use of environmental resources (Esty, 1996~.
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From page 246... ...
For TEA regimes, monitoring pollutants is also a critical and extremely difficult issue, but larger governments enjoy economies of scale with respect to scientific research (Esty, 1996~. Indeed, TEAs have become feasible only as governments have acquired the technical skills to monitor and model pollutants, such as with remote sensing satellites or with sophisticated chemical tags (Rose, 1998; Schmalensee et al., 1998; Tietenberg, this volume:Chapter 6~.
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From page 247... ...
Commerce in Resources In Western legal regimes, commercially available resources tend to be discussed by reference to a finite and relatively limited number of rights categories. Thus in countries on the European continent, property of rights must be among the "numerus clauses," a defined and closed set of cognizable types of property rights; somewhat similarly, Anglo-American property regimes also provide a number of off-the-rack forms of property, and they sharply discourage efforts to create more complicated forms of property.
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From page 248... ...
CBMRs, though sometimes highly adaptive to natural change, are much less adaptive to commercial changes, and in some ways they may leave environmental resources much more vulnerable to commercial pressure from outsiders. Commerce can open up resources to vastly larger numbers of users outside the community, but unfortunately, community management institutions sometimes seem ill equipped to deal with this phenomenon.
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From page 249... ...
In that sense, the complexity of CBMRs' entitlement structures is part of a social pattern that may protect environmental resources from depredations not only from insiders, but also from outsiders. Insofar as complex entitlements baffle and thwart outsiders, they also may discourage outsiders from getting their hands on common resources; hence the very anticommercial character of community-based entitlements may protect these resources from commercial shifts.
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From page 250... ...
All this suggests that if community-based structures are to be deployed to manage environmental resources that have become commercially valuable in the modern world such as wildlife in reserve areas the communities in question may need assistance and possibly restraints from the state in order to shield these communities and their resources from direct contact with that commercial demand. Adding It All Up Putting together all these factors, one is struck by the degree to which TEAs and CBMRs are mirror images, having the opposite strengths and weaknesses.
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From page 251... ...
Governments can coordinate various communities' efforts and mediate disputes; they can set overall quotas to channel total demand of all the communities; and they can defend community institutions against outsiders. Indeed, even the ancient Spanish CBMRs for irrigation intertwined state officialdom into their community practices, apparently to serve some of these very functions (Glick, 1979; Maass and Anderson, 1978~.
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From page 252... ...
Indeed, much of this deprivation has come through the operation of conventional European-model property regimes, in which traditional community management practices are simply invisible as property (Rose, 1998~. As Breckenridge (1992)
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From page 253... ...
Stanford Environmental Law Journal 15:247-337.
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From page 254... ...
1995 Selling pollution, forcing democracy. Stanford Environmental Law Journal 14:300-344.
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Harvard Environmental Law Review 23:393-421.
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From page 256... ...
1994 The nonequilibrium paradigm in ecology and the partial unraveling of environmental law. Loyola of Los Angeles Law Review 27:1121- 1144.
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From page 257... ...
1999 Global environmental regulation: Instrument choice in legal context. Yale Law Journal 108:677-800.
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