Showing papers on "Environmental law published in 1999"

The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?

Abstract: This article is about a problem only just becoming visible: the legitimacy of international environmental law, and more specifically, the perception that the international environmental process is insufficiently democratic. Until now, international lawyers have tended to focus on what environmental standards are needed and how those standards can be made effective. But as decision-making authority gravitates from the national to the international level, the question of legitimacy will likely emerge from the shadows and become a central issue in international environmental law. This article seeks to clarify the nature of the legitimacy challenge and to survey possible sources of legitimacy for international institutions.

Global Environmental Regulation: Instrument Choice in Legal Context

Abstract: A central issue in environmental law is the choice among regulatory instruments. From Pigou to Coase to the present, scholars have debated the relative merits of liability rules, property rules, technology standards, taxes, subsidies, and tradeable allowances. An emerging scholarly consensus in economics and law would crown taxes as the presumptive optimal instrument for controlling environmental externalities. But this debate has largely been confined to the context of national law. This article examines the choice of regulatory instruments at the global level--the Olympics of instrument choice. It contends that the choice of optimal regulatory instrument is contingent on the underlying legal system of the regulatory polity. The article focuses on two salient dimensions of variation across legal systems; the voting rule for adoption of law, and the implementation structure for execution of law. The economics literature on instrument choice typically assumes that the regulator wields automatic fiat and unitary implementation. National regulatory legislation is generally adopted under a majoritarian voting rule which can compel sources of externalities to comply, and executed through a federalist structure which can impose constraints directly on sources. By contrast, global regulatory treaties are generally adopted under a voluntary assent voting rule which requires source countries to choose to participate, and executed through a jurisdictional structure which requires regulation to be implemented by nation-state intermediaries. The article argues that the fundamental differences along these two dimensions between the national and global legal systems--voting rules and implementation structures--make tradeable allowances, not taxes, the presumptive first choice for environmental protection at the global level. The article shows that the voluntary assent voting rule for international treaty law necessitates side payments to engage reluctant sources of externalities--a "beneficiaries pay" rather than a "polluters pay" approach. And it shows that making such side payments is more "participation efficient" under tradeable allowances than under taxes, where participation efficiency is defined as minimizing the sum of the costs of securing participation (which include not only out-of-pocket costs but also the moral hazard distortions induced by subsidizing or compensating polluters for the costs of abatement) plus the costs of enduring nonparticipation (which include "leakage" of the externality-generating activities from regulated to unregulated jurisdictions). The article argues that when participation must be secured rather than coerced, side payments can be made in a more participation efficient manner alongside tradeable allowances than alongside other instruments. In addition, the article shows that implementation by nation-states makes taxes more costly to monitor than tradeable allowances. In concert, these two legal system variables counsel selection of tradeable allowances, not taxes or command-and-control technology standards, to address global environmental problems such as greenhouse warming and biodiversity loss. More generally, the article argues that whether the regulatory polity is the entire planet or a local neighborhood, the prevailing voting rule and implementation structure will powerfully affect the relative merits of regulatory instruments, and that the debate over instrument choice needs to be reconceived with more explicit attention to the assumed underlying legal framework. Indeed, the article suggests that a key explanation for the divergence between the Pigouvian and Coasean approaches is the assumed underlying legal system. The article seeks to demonstrate that in the design of international regulatory law, economics matters; and, at the same time, that in the economics of regulatory design, law matters.

Global Environmental Regulation: Instrument Choice in Legal Context

Abstract: A central issue in environmental law is the choice among regulatory instruments. From Pigou to Coase to the present, scholars have debated the relative merits of liability rules, property rules, technology standards, taxes, subsidies, and tradeable allowances. An emerging scholarly consensus in economics and law would crown taxes as the presumptive optimal instrument for controlling environmental externalities. But this debate has largely been confined to the context of national law. This article examines the choice of regulatory instruments at the global level--the Olympics of instrument choice. It contends that the choice of optimal regulatory instrument is contingent on the underlying legal system of the regulatory polity. The article focuses on two salient dimensions of variation across legal systems; the voting rule for adoption of law, and the implementation structure for execution of law. The economics literature on instrument choice typically assumes that the regulator wields automatic fiat and unitary implementation. National regulatory legislation is generally adopted under a majoritarian voting rule which can compel sources of externalities to comply, and executed through a federalist structure which can impose constraints directly on sources. By contrast, global regulatory treaties are generally adopted under a voluntary assent voting rule which requires source countries to choose to participate, and executed through a jurisdictional structure which requires regulation to be implemented by nation-state intermediaries. The article argues that the fundamental differences along these two dimensions between the national and global legal systems--voting rules and implementation structures--make tradeable allowances, not taxes, the presumptive first choice for environmental protection at the global level. The article shows that the voluntary assent voting rule for international treaty law necessitates side payments to engage reluctant sources of externalities--a "beneficiaries pay" rather than a "polluters pay" approach. And it shows that making such side payments is more "participation efficient" under tradeable allowances than under taxes, where participation efficiency is defined as minimizing the sum of the costs of securing participation (which include not only out-of-pocket costs but also the moral hazard distortions induced by subsidizing or compensating polluters for the costs of abatement) plus the costs of enduring nonparticipation (which include "leakage" of the externality-generating activities from regulated to unregulated jurisdictions). The article argues that when participation must be secured rather than coerced, side payments can be made in a more participation efficient manner alongside tradeable allowances than alongside other instruments. In addition, the article shows that implementation by nation-states makes taxes more costly to monitor than tradeable allowances. In concert, these two legal system variables counsel selection of tradeable allowances, not taxes or command-and-control technology standards, to address global environmental problems such as greenhouse warming and biodiversity loss. More generally, the article argues that whether the regulatory polity is the entire planet or a local neighborhood, the prevailing voting rule and implementation structure will powerfully affect the relative merits of regulatory instruments, and that the debate over instrument choice needs to be reconceived with more explicit attention to the assumed underlying legal framework. Indeed, the article suggests that a key explanation for the divergence between the Pigouvian and Coasean approaches is the assumed underlying legal system. The article seeks to demonstrate that in the design of international regulatory law, economics matters; and, at the same time, that in the economics of regulatory design, law matters.

The Global Environment: Institutions, Law and Policy

Abstract: Governing the global environment, Norman J. Vig global institutions and the environment, Marvin S. Soros the role of environmental NGOs in international regimes, John McCormick the EU as an environmental governance system, Regina S. Axelrod the emerging structure of international environmental law, Edith Brown Weiss environmental protection in the 21st century, Philippe Sands compliance with international environmental agreements, Michael Faure Agenda 21 - myth or reality, Gary C. Bryner economic integration and the environment, Daniel C.Esty the UN climate change agreements, Michael Molitor US international environmental policy since Rio, Robert Paarlberg the Dutch national plan for sustainable society, Duncan Liefferink democracy and nuclear power in the Czech Republic, Regina S. Axelrod the Three Gorges Dam and sustainable development in China, Lawrence Sullivan mining, environmental protection and sustainable development, Richard O.Miller.

International law and sustainable development : past achievements and future challenges

Abstract: 1. Introduction 2. Sustainable Development and Unsustainable Arguments 3. Sustainable Development: Treaty, Custom and the Cross-Fertilization of International Law 4. Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited 5. Natural Resources in the Case Law of the International Court 6. The Development of the Legal Regime of High Seas Fisheries 7. International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle 8. Towards Long Term Sustainable Use: Some Recent Developments in the Legal Regime of Fisheries 9. Protection of Ecosystems under International Law: Lessons from Antarctica 10. Sustaining Small Cetaceans: A Preliminary Evaluation of the ASCOBANS and ACCOBAMS Agreements 11. The Settlement of Disputes According to the Straddling Stocks Agreement of 1995 12. The Law of the Sea Convention and Agenda 21: Marine Environment Implications 13. The International Legal Regime for Protection and Preservation of the Marine Environment from Land-based Sources of Pollution 14. Port States and Environmental Protection 15. Liability for Damage to the Marine Environment 16. The Challenge of Implementation: Some Concluding Notes

International Law and Infectious Diseases

Abstract: BRIEF HISTORY OF INTERNATIONAL LAW ON THE CONTROL OF INFECTIOUS DISEASES INTERNATIONAL HEALTH REGULATIONS SOURCES OF INTERNATIONAL LAW AND INFECTIOUS DISEASES CONTROL INTERNATIONAL TRADE LAW AND INFECTIOUS DISEASES INTERNATIONAL HUMAN RIGHTS LAW AND INFECTIOUS DISEASES WAR, WEAPONS, AND INFECTIOUS DISEASES INTERNATIONAL ENVIRONMENTAL LAW AND INFECTIOUS DISEASES MICROBIALPOLITIK, INTERNATIONAL LAW, AND GLOBAL HEALTH JURISPRUDENCE

Rethinking environmental regulation: perspectives on law and governance

Abstract: Contemporary environmental politics in the United States poses an interesting dilemma. On the one hand, public opinion surveys demonstrate consistently strong support for environmental values. People are concerned about the quality of the environment and are willing to protect it, even at substantial costs to themselves and to the prospects for economic growth. Two concerted efforts to roll back environmental programs—under the Reagan administration in the early 1980s and the Republican Congress of the mid-1990s—ended in failure. On the other hand, there is dissatisfaction with the means policy makers have used to achieve policy goals. Even strong defenders of environmental programs complain of the inflexibility, short-sightedness, and distrust that is characteristic of regulation in the United States. This Article proposes a basis for a conceptual transition from an old to a new environmental regulation regime. The need for this transition becomes more

Tradable water rights : a property rights approach to resolving water shortages and promoting investment

Abstract: In most countries, the state owns the water and hydraulic infrastructure, and public officials decide who gets water rights, how the water is to be used, and how much will be charged for its use. The authors of this paper compare administered systems of water allocation with a system of tradable water rights, and argue that water allocation by administrative edict has resulted in costly, large-scale inefficiencies in the supply and use of water, even with an adequate institutional framework. Secure property rights, on the other hand, have been shown to have a powerful positive effect on investment and efficiency, although only a few countries have tried to take advantage of the allocative efficiencies of a market to assign water resources among users. The authors argue that in order to ensure implementation of an effective water market system, attention should be paid to: (i) ensuring stakeholder participation in designing and implementing the new legislation; (ii) deciding on new rules for the initial allocation of rights and for how new rights should be allocated; (iii) establishing a public registry and block titling; (iv) setting up or strengthening water user associations; (v) protecting against the development of potential monopolies; (vi) ensuring that trades do not infringe on the water rights of existing users; and (vii) establishing appropriate environmental laws.

Editorial Introduction: The Construction of a Multilevel Environmental Governance System:

Abstract: At its founding in 1957, the European Union (EU) had no environmental policy, no environmental bureaucracy, and no environmental laws. When, in 1973, the EU began systematically to address environmental concerns there was little expectation that the environment would develop into one of the largest areas of common activity. Twenty-five years on, the EU has some of the most progressive environmental policies of any state in the world although it is not itself a state. At the same time, the preexisting environmental policies of the member states have undergone a progressive change through their involvement in EU environmental policymaking. In other words, the member states have created an institutional entity to perform certain tasks which has in turn deeply affected the way they themselves perceive and act against environmental problems. This theme issue of Government and Policy offers a retrospective analysis of these developments. The purpose of this introductory essay is to describe the historical evolu...

The impact of European Directives on estuarine and coastal science and management

Abstract: Many recent developments in European marine and estuarine science have been against the demands of European Union legislation. The implementation of certain statutes, the role of scientists and the nature of the data required are discussed using examples from the UK, the Netherlands and Portugal. This includes the implementation of the EU Directives on Urban Waste-water Treatment, the control of Nitrates, the designation of Species and Habitats, the control of Dangerous Substances, the statutory requirement for Environmental Impact Assessments and the recently proposed Water Framework Directive. For these, the integration of physical, chemical and biological monitoring and investigation is discussed in relation to the science dictated by the legislative and administrative requirements. Each of these Directives requires the development of generic guidelines and protocols for implementation and the use of national enabling legislation. This indicates that, in several cases, the science should concentrate on monitoring and assessment in a well-structured and quality-controlled manner. The paper concludes by summarising developments based on similarities in the implementation of present and proposed Directives across Europe.

Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law

Abstract: Legal scholars have focused their attention on regulatory standards. Less attention has been given to the inevitable "slippage" between the standards and the ensuing implementation. This essay presents an alternate view that highlights the slippage. Part I discusses two forms of slippage. "Negative" slippage is a ubiquitous feature of environmental law: something that is legally mandated simply fails to happen. "Affirmative" slippage is more interesting: the required standards are renegotiated rather than ignored, resulting in a regulatory regime that may bear little resemblance to the "law on the books." Part II explores how the concept of slippage might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. It turns out that the Supreme Court has had a certain degree of complicity in the creation of slippage. Slippage also has implications for policy debates over environmental standards. If standards are not automatically translated into compliance, our understanding of their costs and benefits may shift. Finally, in terms of teaching, we need to devote more attention to compliance-related issues.

Environmental impact assessment in practice : impact and limitations

Abstract: List of Contributors. Preface. Part 1: Quality and Effectiveness. 1 Introduction. 2 Comparative Evaluation of EIA Systems. 3 Capacity Building. 4 Quality and Quality Control in EIA. Part 2: EIA At the International Level. 5 The Convention of Environmental Impact Assessment in a Transboundary Context. 6 Environmental Impact Assessment A and Multi--Lateral Financial Institutions. Part 3: International Experience. 7 Environmental Impact Assessment in Central and Eastern Europe. 8 Environmental Impact Assessment in East Asia. 9 Environmental Impact Assessment in Africa. 10 Environmental Impact Assessment in South and Central America. 11 Environmental Impact Assessment in North America. 12 Environmental Impact Assessment in the European Union. Part 4: Sectoral Experience. 13 Policy Environmental Assessment. 14 Environmental Impact Assessment of Land--Use Plans: Experience under the National Environmental Policy Act and the California Environmental Quality Act. 15 Environmental Impact Assessment and Waste Management. 16 Environmental Impact Assessment of Road and Rail Infrastructure. 17 Environmental Impact Assessment for Energy Projects. 18 Environmental Impact Assessment for Mining Projects. 19 Environmental Impact Assessment for Water Projects. Index

Access to genetic resources : strategies for sharing benefits

Abstract: For centuries, genetic resources not protected by Intellectual Property Rights were collected and used without any regulation. They were a free good available for everyone. Huge profits were made but never shared with the custodians of biological diversity. "Access to genetic resources" underscores the importance of informed national approaches to enforce access to genetic resources and benefit-sharing provisions of the Convention on biological diversity. It discusses key issues concerning access to genetic resources and sharing of benefits arising from their use; and examines ongoing efforts to formulate and implement national measures. It brings together contributions from leading authorities in policy and legal aspects of access to genetic resources. This volume is aimed at policy makers, researchers, inter-governmental officials, practitioners and students of international environmental law and diplomacy.

Eco-pragmatism: Making Sensible Environmental Decisions in an Uncertain World

Abstract: "Eco-pragmatism" takes on the most critical controversies in environmental law today: how to weigh economic costs against environmental quality and human life, how to assess the long time horizons of environmental problems, and how to make appropriate decisions in the face of scientific uncertainty about the scope of environmental problems. "A comprehensive well-argued effort to address many of the most difficult issues facing legislators concerned with environmental issues." Stephen P. Adamian, "Boston Book Review" "A timely and well-argued contribution." Calestous Juma, "Nature""

Public Choice at the Intersection of Environmental Law and Economics

Abstract: Management of environmental assets begins with a commons and ends with various legal institutions that assign property rights and control. Each step in the evolution of these legal institutions involves collective decision making. Public Choice analysis helps to explain the decision making process and institutional characteristics that emerge. A survey of Public Choice literature that addresses environmental issues illustrates how Public Choice sheds light on outcomes for the U.S. experience. In the absence of Public Choice theory, law and economics scholars would be hard pressed to explain why costly forms of environmental regulation seem preferred to apparently more efficient institutions and why the body politic seemingly accepts a high-cost, low-output outcome.

Environmental Regulation in Agriculture and The Adoption of Environmental Technology

Abstract: Agriculture in the United States has been the subject of numerous government incentive programs over the years. These programs have been designed to achieve a wide variety of goals that include supply control, cropland conversion, soil conservation and environmental quality. A variety of incentive mechanisms have been used to achieve these goals. Incentives for protecting and enhancing water quality come from two different programmatic directions. The U.S. Department of Agriculture (USDA) has a long history of promoting natural resource stewardship through various forms of voluntary assistance (carrots), such as education, technical assistance and cost sharing. Water quality programs that have arisen from the Clean Water Act (CWA) and state water quality protection laws can be of the variety (stick), where farmers are forced through command-and-control or other incentive mechanisms to adopt alternative management practices.

Enforcing International Law: Implications for an Effective Global Warming Regime

Abstract: SUMMARY Collective management often requires formal commitments as well as mechanisms for enforcing compliance. Current efforts to slow global warming have focused on commitments and given scant attention to enforcement. They have followed the "standard model" when creating international environmental treaties: set commitments first, defer procedures for enforcement until later, and rely on "soft" (or nonexistent) measures for enforcing compliance. However, the evidence that supports use of the "standard model" is misleading and does not apply to global warming. In most international environmental agreements, it has been possible to defer or ignore enforcement procedures because nearly all commitments have been modest and enforcement has not been necessary. What little wisdom exists on the design of enforcement procedures is based heavily on the experience in the Montreal Protocol on Substances that Deplete the Ozone Layer. But a close look at that experience shows that deferring the creation of enforcement procedures--in particular, the Protocol's "Non-Compliance Procedure"--until after most commitments were in place severely weakened the procedures, because countries that feared strong enforcement would consent only to a soft mechanism. The few countries that have brazenly violated the agreement (e.g., Russia) are changing their behavior only in response to incentives--especially large compensation programs and threats of trade sanctions--that are actually external to the Protocol's enforcement system. By itself the Protocol's hobbled enforcement process has been able to handle only relatively minor violations for which its small carrots and sticks are adequate. The design of an effective global warming regime must focus on enforcement mechanisms as well as commitments. Failure to do so will only perpetuate the shallowness of international environmental law--commitments that appear bold but have little direct impact on a country's behavior except where changes in behavior are in the country's self-interest. This article reviews the record of compliance with and enforcement of international environmental agreements. It also examines the prospects for enforcement under major alternative types of commitments that might be included in a global warming regime. A system of tradable permits is most vulnerable to unraveling if cheating is rampant, but a trading system in which permit-holders are liable for noncompliance ("buyer liability") is the easiest to enforce because the market would impose enforcement with price signals. Flaky permit sellers would command a lower price than trustworthy vendors. However, the concept of emission trading, which is included in the 1997 Kyoto Protocol on global warming, will be stillborn because it requires the impossible task of distributing permits worth trillions of dollars. That leaves other alternatives, such as coordination of carbon taxes or other national policies, which are not easily enforced. Policymakers are thus in a quandary. If they focus on setting prices or quantities of emissions, they must overcome a huge hurdle--enforcement--for which prior experience with international environmental law (e.g., the Montreal Protocol) is an imperfect guide and conventional wisdom is worse than no guide at all. Mechanisms much more powerful than those offered by the "standard model" will be needed. Policymakers could focus commitments on "liberal states" in which internal public pressure, for example, from environmental groups, and robust legal systems make it possible to enforce international commitments from inside (ground-up) rather than the outside (top-down). But international cooperation on prices and quantities that is restricted to such nations is unlikely to slow global warming by much, because those states account for a declining fraction of the emissions that cause global warming. One partial solution is based on the fact that the liberal nations, which are most likely to comply with demanding commitments, are also the major centers of technological innovation. …

Brownfields Policies for Sustainable Cities

Abstract: Explores the nexus between sustainable development and another “revolution” in environmental law: the proliferation of state and federal policies designed to combat the “Brownfields” phenomenon (the existence of abandoned or underutilized urban sites that sit idle in part due to concerns over environmental contamination).

The Law of Environmental Damage: Liability and Reparation

Abstract: This interdisciplinary thesis investigates three dimensions of reparative environmental law with the application of a trisected generational model evaluated against a theory of environmental effici ...

Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law

Abstract: Legal scholars have focused their attention on regulatory standards. Less attention has been given to the inevitable "slippage" between the standards and the ensuing implementation. This essay presents an alternate view that highlights the slippage. Part I discusses two forms of slippage. "Negative" slippage is a ubiquitous feature of environmental law: something that is legally mandated simply fails to happen. "Affirmative" slippage is more interesting: the required standards are renegotiated rather than ignored, resulting in a regulatory regime that may bear little resemblance to the "law on the books." Part II explores how the concept of slippage might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. It turns out that the Supreme Court has had a certain degree of complicity in the creation of slippage. Slippage also has implications for policy debates over environmental standards. If standards are not automatically translated into compliance, our understanding of their costs and benefits may shift. Finally, in terms of teaching, we need to devote more attention to compliance-related issues.

Transnational environmental law : lessons in global change

Abstract: Preface. Introduction. I: New Ways of Making International Law. 1. Methods to Expedite Environmental Protection: International Eco-standards. 2. The Creation of Transnational Rules for Environmental Protection. 3. New Approaches to Transnational Environmental Disputes. 4. International Environmental Law After Rio. 5. To Treaty or Not to Treaty: A Survey of Practical Experience. II: The Impact of Innovative National Law. 6. Pollution Sanctions: New Alternatives to Civil Liability. 7. The Role of Domestic Procedures in Transnational Environmental Disputes. III: New Focal Areas. 8. Commodity or Taboo? International Regulation of Trade in Endangered Species. 9. The Rise of Regional Agreements for Marine Environmental Protection. 10. Regional Approaches to Transboundary Air Pollution. 11. Protecting the Ozone Layer. 12. The Montreal Regime: Sticks and Carrots. IV: A New Emphasis on the Effectiveness of Legal Institutions. 13. CITES and the Migratory Cactus. 14. Environmental Legislation and Technical Assistance. 15. Innovations in International Environmental Governance. 16. The Effectiveness of International Environmental Agreements: Taking Stock. 17. Trusts for the Earth: New International Financial Mechanisms for Sustainable Development. 18. International Economic Instruments for Sustainable Developments: Sticks, Carrots, and Games. 19. Institution-Building to Assist Compliance with International Environmental Law: Perspectives. 20. Bibliographical References. Index.

Trends in International Environmental Law Affecting the Minerals Industry

Abstract: The mineral resources industry is entering a new era of legal regulation in the 21st century. Beyond expanding national laws, mineral activities and products will be increasingly subjected to international law—multi-national governmental and institutional regulations and requirements. This article explores the new trends and surveys the growing body of international legal authorities affecting every phase of the mineral industry's future from access to process to final products. ‘Because [international] environmental regulation is here to stay and bound to become more widely adopted, more stringent, and better enforced, the winners in the… [minerals] markets will not be those… that avoid environmental control (only later to be forced to internalise the high cost of having done so), but will be those… that were ahead of the game, those that played a role in changing the industry's production parameters, and those that used their innovative capabilities to their competitive advantage.’1

Environmental Law and Ethics

Abstract: Introduction: Environmental Perspectives.- The Main Ethical Approaches.- Institutional Arrangements for Environmental Law.- The International Development of Environmental Values.- Environmental Policy-Sustainable Development.- Environmental Principles.- The Range of Legal Techniques.- Property Law and the Environment.- Wildlife.- Waste Management.- International Trade.- Environmental Rights.- Bibliography.

UN-Principles and International Environmental Law

Abstract: "Principles in general" are not an easy issue to deal with; almost like an intellectual refugee they are frequently used by doctrine in order to overcome uncertainties regarding the legal value of numerous texts. The notion of principle is highly appreciated by politicians and others, because they believe, with some naivete, that principles constitute a stronger and much more binding type of rule. Thus "principles" serve twofold, even contradictory, purposes.

Encyclopedia of Environmental Pollution and Cleanup

Abstract: Air pollution environmental law and regulation environmental sampling and analysis hazardous waste cleanup pollution in the biosphere waste reclamation health effects of pollution transport of waste nuclear waste regulatory and economic policies.

Clearing the Air: Four Propositions About Property Rights and Environmental Protection

Abstract: INTRODUCTION Privatization is sweeping the globe.(1) Since the Reagan-Thatcher revolution of the 1980s, governments around the world have been selling off public assets to private owners in order to improve efficiency and increase production. Between 1985 and 1994, $468 billion worth of state enterprises were sold off to private investors.(2) But privatization so far has been limited to state enterprises, Governments have not, with a few notable and highly controversial exceptions,(3) begun selling off their vast natural resource holdings, including forest lands, parks, and waterways. This is a mistake, according to some economists who claim that the same economic arguments favoring private ownership of economic producers (polluters and resource users) also support private ownership of natural resources (i.e., environmental goods). As Richard Stroup and Sandra Goodman put it, "government ownership and control works just as badly with environmental resources as with all other resources."(4) In their view, privately owned natural resources would be better managed not only economically but environmentally. But critics argue that the claims of these so-called "free market environmentalists" are unrealistic,(5) based on faulty premises,(6) overly reliant on anecdotal evidence,(7) and oblivious to economies of scale and the transaction costs of resource privatization.(8) This article contributes to the debate about the utility of property rights for environmental protection by arguing four propositions. First, environmental protection efforts are inevitably property-based in that all solutions to the "tragedy of the commons" involve the imposition of property rights (private/individual, common, or state/public) on formerly unowned (nonproperty or open-access) resources. Second, the "privatization" of natural resources--their conversion from nonproperty or public property to private (common or individual) property--can, in some circumstances, enhance environmental protection, economic efficiency, or both. Third, claims that "privatization" is a necessary and sufficient condition for optimal environmental protection are inherently implausible, under-supported by economic theory, and under-determined by the available empirical evidence. Fourth, and often overlooked, private ownership of resource users/polluters remains vitally important for environmental regulation to be effective. PROPOSITION I. ALL SOLUTIONS TO ENVIRONMENTAL PROBLEMS ARE "PROPERTY BASED." Environmental problems stem, in the first instance, from the insufficient specification of property rights in environmental goods (i.e., natural resources). Aristotle recognized this more than 2,000 years ago, when he wrote, "that which is common to the greatest number has the least care bestowed upon it."(9) This implies that some type of property regime needs to be imposed to conserve resources. But property rights never have been imposed on many natural resources, for a variety of economic, technological, ecological, and cultural reasons. And history has only too often confirmed Aristotle's observation that unowned resources receive "the least care." Throughout this century economists have studied relations between property rights and patterns of resource use and degradation. In 1911 the Danish economist Jens Warming elaborated on Aristotle's observation about unowned resources in the context of open-access fisheries,(10) Warming's findings led to further investigations of open-access fisheries by H. Scott Gordon and Anthony Scott in the 1950s.(11) In the late 1960s, the biologist Garrett Hardin and the economist Harold Demsetz provided the classic accounts of, respectively, the depletion of open-access/nonproperty resources and the evolution of property institutions (i.e., the conversion of nonproperty to property) to avert their overexploitation by reducing externalities and transaction costs.(12) Hardin allegory of the "tragedy of the commons" provides a framework for analyzing relations between property rights and environmental protection. …

Property Rights Solutions for the Global Commons: Bottom-Up or Top-Down?

Abstract: I. INTRODUCTION Environmental concerns often ignore geo-political borders. Problems that previously were dealt with by one nation and its government now involve scores of nations and their governments. At one time, policymakers focused predominantly on local matters, where pollutants might simply cross the boundary of two neighbors' backyards, or interstate problems, such as air and water pollution that could be handled within a nation or two. Now, however, policymakers are faced with international problems, such as the extinction of species, and global problems, such as ozone depletion and global warming. Local environmental concerns are best understood and resolved in a framework initially developed by Nobel laureate Ronald H. Coase, wherein these concerns are viewed as a competition over conflicting uses for scarce resources.(1) In this context, air pollution by a factory is simply a use of air that conflicts with others' enjoyment of that resource. So, the question then becomes: which user has a right to the air?(2) Conflicting uses, such as in the air pollution example, can be resolved through bargaining if well-defined property rights specify who has the right to use the resources and therein derive value from them.(3) The main question this article addresses is whether the Coasean property rights solution to environmental problems can be used as effectively on the international level as it has been used on the local level. Specifically, the authors pose the following two questions: (1) can effective property rights be created under international law, and (2) can and should such property rights be created top-down instead of bottom-up? In this article, "top-down" means government-mandated property rights, and "bottom-up" means customary, common law property rights that are formed over time when conflicts over resource use arise. In addressing these questions, this article first contrasts the Coasean view of conflicting resource use with the Pigouvian view of externalities. It then considers the importance of time- and place-specific information in the evolution of property rights to determine how they are established. Then, the article contrasts bottom-up property rights with the prospect of developing effective top-down property rights and provides examples of both. Acknowledging that transaction costs may thwart privatization of the global commons (e.g., the global atmosphere), it then addresses the limits of top-down solutions and offers policy suggestions that build on property rights and the rule of law. II. TWO VIEWS OF THE COMMONS: PIGOU VS. COASE Following A. C. Pigou,(4) the dominant policy approach for solving environmental problems has been to use government's power to tax and regulate.(5) Government intervention is seen as justified when externalities exist. The term "externality" refers to an economic concept asserting that inefficiencies result when costs incurred and benefits received by individuals involved in an economic transaction or activity do not incorporate all the costs and benefits to society.(6) Therefore, a transaction that seems efficient to the individual parties to a transaction may really be inefficient from the viewpoint of society because of the existence of externalities.(7) Negative externalities are present when a portion of the costs of an economic transaction are imposed on others outside of that transaction without their consent. According to this reasoning, negative externalities result in overproduction or over-use of resources, because resource users do not bear the full costs associated with their activities.(8) This problem can turn into a "tragedy of the commons" when every user of a commons receives the full marginal benefit from their use, but bears only a portion of the marginal cost.(9) Coase, however, offered a different approach to the problem of social cost.(10) Coase did not think in terms of externalities, but rather considered pollution and clean air (or water, forests, wildlife habitat) as conflicting or alternative resource uses for which there is competition. …