Journals
Winter 2007, Vol. 47, No. 1
ESSAY—Rights, Rules, and Common Pools: Solving Problems Arising in Human/Environment Relations
Oran R. Young
We are in danger of choking on the cascade of conceptual distinctions social scientists have devised to frame questions and guide analysis concerning interactions between human users and natural resources and environmental services. Some analysts focus on the properties of goods and services (e.g., excludability and rivalness) and speak of common-pool resources and public goods without recognizing that these phenomena are to a considerable degree socially constructed. Others direct attention to attributes of management systems or resource regimes (e.g., structures of property rights), without realizing that the performance of these systems is affected by the character of the goods and services to which they pertain. Still others seek to understand the formation and performance of environmental or resource regimes without taking into account the fundamental distinction between dominium and imperium in considering the role of the state in such governance systems. Not surprisingly, some analysts simply refer to the commons in generic terms (e.g., the tragedy of the commons, governing the commons) without making any sustained effort to address the conceptual issues referred to in the preceding sentences. Small wonder, then, that analysts and practitioners alike often find themselves enmeshed in a conceptual labyrinth that they are unable to navigate successfully and yet are powerless to change.
What can we do to alleviate this problem and, in the process, to facilitate a productive dialogue among those striving to understand and ultimately to guide human/environment relations in a variety of settings? One possibility, of course, would be to scrap the existing suite of conceptual distinctions in the hope of starting fresh with a more straightforward and coherent framework for analyzing these matters. But the prospects for pursuing this avenue successfully are, to put it mildly, slim. The existing concepts all have articulate proponents, and there is no mechanism through which the community of analysts working in this field could select and implement a new conceptual system, even if there were a desire to do so. In this essay, therefore, I explore a second option, seeking to distinguish the major concepts in use today from one another as sharply and as precisely as possible and explaining why it is helpful to seek clarity regarding such matters by describing some of the more interesting lines of thought that come into focus once the prevailing terminological fog is lifted. Along the way, I refer to issues ranging from the conservation of local stocks of fish to the regulation of emissions of greenhouse gases to illustrate the scope of the domain to which this discussion pertains.
Utton Transboundary Resources Center Model Interstate Water Compact
Jerome C. Muys, George William Sherk & Marilyn C. O’Leary
Disputes among states sharing interstate waters have increased significantly over the past two decades. These disputes, which involve the states’ respective quantitative shares of such waters, water quality concerns, and the effects of a variety of federal environmental laws enacted since the early 1970s, have been of increasing concern to the members of the Committee on Energy and Natural Resources of the U.S. Senate, chaired by Senator Pete V. Domenici of New Mexico. Consequently, in 2000, as a result of Senator Domenici’s efforts, the University of New Mexico School of Law received funding for the Utton Transboundary Resources Center to consider and promote ways for states to resolve interstate water disputes short of protracted, costly, and often bitter litigation.
The U.S. Supreme Court has made its position abundantly clear: States should resolve their conflicts pursuant to the compact clause of the U.S. Constitution. Such disputes are "more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the states so vitally interested in it than by proceedings in any court however constituted."
The states have entered into 26 interstate water allocation compacts, primarily in the western United States, most of them over 50 years ago. As interstate water conflicts have increased, so has the realization that most of the existing compacts appear to be inadequate to resolve these conflicts. Consequently, in 2002 the Utton Center initiated a comprehensive project to develop a Model Interstate Water Compact. A national conference, titled "Interstate Waters: Crossing Boundaries for Sustainable Solutions, a Multidisciplinary Approach," was held to address the approaches of a variety of disciplines that are key in managing interstate water resources. Seventy lawyers and scientists from across the United States with extensive expertise in interstate water issues gathered to share what they believed to be the strengths and the limitations of their particular disciplines when it came to addressing complex water issues. The purpose of the conference was to identify ways that they could better work together to support the management goals of stakeholders. In 2004, a second national conference, "Transboundary Waters: Crossing Cultural Boundaries for Sustainable Solutions," brought together a variety of experts who had been successful in crafting Indian water rights settlements. Acequia water rights and values were also discussed. Perspectives on the values related to water were shared by representatives of major water user groups.
An Empirical Investigation of Institutional Change in Groundwater Management in Texas: The Edwards Aquifer Case
Fred O. Boadu, Bruce M. McCarl & Dhazn Gillig
Texas Senate Bill 1477 changed the rules governing water appropriation in the Edwards Aquifer from a "rule of capture" to a "permit system." This article discusses some of the factors that explain the institutional change and empirically estimates the likely impact of the change. The article concludes that industrial and municipal water users benefited from the introduction of water marketing even though overall welfare declined. Also, the states objective to protect endangered species was achieved with increased flows to key rivers, streams, bays, and estuaries in the aquifer region.
A Common Tragedy: Condemnation and the Anticommons
Robert L. Scharff
Economic development of land may be suboptimal where multiple parties have the legal right to exclude use of the property in question. Michael Heller labeled this phenomenon the "anticommons." Some argue that condemnation of private property for economic development is a potentially efficiency-enhancing solution to the anticommons problem. Until recently, this argument was largely academic; however, with the recent U.S. Supreme Court decision in Kelo v. City of New London, condemnation for economic development is now a valid policy choice. In this article, I argue that the economic models used to justify condemnation are fundamentally flawed, and that the use of condemnation for economic development encroaches upon autonomy interests without guaranteeing the promotion of efficiency interests.
Collective Action on Climate Change: The Logic of Regime Failure
Paul G. Harris
The international climate regime, primarily designed to limit the emissions of pollutants causing global warming, has failed. Why has international cooperation to combat global warming been so difficult, and what factors must change to improve the situation—assuming it is even possible? Using Mancur Olson’s classical theory of collective action, this article endeavors to explain the failure of the climate regime. Other international environmental agreements and the associated regimes, such as the Mediterranean Action Plan and the Montreal Protocol on ozone depletion, demonstrate that collective action to address international environmental problems is possible. Both agreements contain the ingredients that classical theory suggests are necessary to achieve collective action. But the flipside of collective action theory—that collective action in larger groups is very difficult or unlikely—can also apply to international agreements and action on climate change. Despite the Mediterranean and Montreal successes, relatively speaking, and in spite of so much effort over two decades to create an effective climate regime, it is by no means apparent that the elements for success will exist for the foreseeable future. We should expect a continued muddling along that may, at best, reduce slightly—but not reverse—global warming at some point in the relatively distant future. Climate change is with us to stay.
The Application of International Criminal Law to Resource Exploitation: Ituri, Democratic Republic of the Congo
Aaron Ezekiel
Control of natural resources has been a powerful motivator for internal and international armed conflict in the Democratic Republic of Congo (DRC) for more than a century. In June 2000, the U.N. Security Council established a Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo, which especially focused on conflict in Ituri Province and elsewhere in northeastern DRC since 1998. During 2003 and 2004, the atrocities committed in this conflict became the focus of the first formal investigation by the Office of the Prosecutor of the International Criminal Court (ICC). This article, following the work of the U.N. Panel and non-governmental organizations, argues that investigation and prosecution of the natural resource crimes are both possible under the ICC Statute and should be at the center of the prosecution as it is central to the ongoing conflict.
