Weak states and the commons

Vincent Geloso and Félix Foucher-Paquin have posted "Weak States and the Commons: Fisheries and Economic Development in the Gaspesian Peninsula circa 1830". The abstract:

The inefficiencies of common property fisheries are well-known to economists. To avoid over-exploitation, they propose multiple forms of government solutions like taxes, quotas and the enforcement of property rights regimes designed to avoid over-harvesting. However, can there be efficient arrangements under statelessness or in the presence of weak states? One such example is the Gaspesian Peninsula (in the Canadian province of Quebec) during the first half of the 19th century. There, a single firm (the Charles Robin Company) came to dominate the market and it was able to effectively to restrict entry. In this paper, we unveil that it was able to do so by reducing the prices of imported goods that it would give to local fishermen in exchange for a part of their catch. This had the effect of deterring fishermen to contract with other merchants as well as deterring other merchants from entering the market. It also had the effect of making the region, contrary to what historians depict, richer than most regions of Canada at the time. We take this as an example of the ability to deal with commons problems in the presence of weak states.

Alexander Henderson, Causapscal River (1872-1875)

Colorado water law yet again

Colorado water law continues to spur scholarship. The recent issue of Environmental History has a review by Michael Weeks of  Robert Crifasi's A Land Made from Water: Appropriation and the Evolution of Colorado’s Landscape, Ditches, and Water Institutions (University Press of Colorado, 2015). From the review:

While the book presents no definitive argument, Crifasi is skeptical of claims that water management in the West has been synonymous with concentrated power. Rather, his often meandering narrative suggests that water developed roughly along practical and evolutionary lines, with users and institutions responding logically to changing water needs.

Most of the text centers on the period from Colorado’s 1858 Gold Rush to the early twentieth century. Heavy doses of environmental determinism appear throughout. Crifasi argues that failed adventures in ditchdigging and the need to move water across property lines pushed farmers to enlist the aid of the territory/state of Colorado to form water districts and employ water commissioners and state engineers to oversee water management. Shared need propelled farmers to pool their resources to form mutual irrigation companies. The evolution of Colorado’s Doctrine of Prior Appropriation was a commonsense response to shared need that enabled users to quantify and prioritize water rights as well as prevent property owners from hoarding the resource. In Crifasi’s telling, even corporate attempts to monopolize and privatize water in the late nineteenth century were a natural part of the region’s agricultural evolution since concentrated capital propelled the development of sophisticated canals that could bring uplands into production.

One of Crifasi’s most intriguing, yet underdeveloped sections addresses water measurement and distribution. Employing William Cronon (Nature’s Metropolis, 1991), he argues that for water to be fairly distributed in an arid climate, it had to become a commodity that could be broken down into discrete measurable units. This meant water users had to translate malleable units such as the miner’s inch into standardized ones such as cubic feet per second. It also explains why users employed Colorado State Water Engineers to monitor stream measurements, water priority, and the carrying capacities of canals and ditches, as well as why the state agricultural college produced some of the nation’s first irrigation engineers. With a fine attention to detail, Crifasi then shows how water, once commodified, enabled irrigation companies to call for water releases based on their shareholders’ water rights, the priority of their holdings, and the availability of the resource.

Within these strengths of the book lies two of its weaknesses.

Oil, competition, and Martians

The Public Domain Review recently posted (courtesy of archive.org) a fascinating and entertaining animated short from 1956 by the American Petroleum Institute, entitled "Destination Earth". As the Review explains:

Produced at the height of the Cold War, and made at the behest of the American Petroleum Institute (still the biggest lobby for the U.S. oil and gas industry), this great little promotional film from John Sutherland Studios champions not only the wonders of oil as might be expected, but also free-market capitalism. The surprisingly humorous cartoon tells the story of how the suspiciously Stalin-like leader of Mars, named Ogg, sends a rather calamity-prone citizen to Earth to find a better power source for his poorly-running “state limousine”. The exploring Martian, of course, lands in the United States and soon discovers the many and myriad delights of petroleum, and that, in contrast to his home planet, competition between companies is rife. His take-home lesson (and one drilled into the viewer on numerous occasions) is that “competing for the customer’s dollar” is key to the success of the oil industry and, of course, the thriving country as a whole. Delivering the news to Ogg back on Mars, the leader replies defiantly that “competition is downright un-Martian”, but the ordinary Martians are not to be deterred and soon rise up to overthrow Ogg and set up a thriving oil industry (and capitalist culture) of their own — the short ending with the slogan “destination unlimited” writ proudly across the screen.

Antimonopoly in Public Land Law

Michael Blumm and Kara Tebeau recently posted "Antimonopoly in Public Land Law". The abstract:

Public land law is often thought to be divided into historical eras like the Disposition Era, the Reservation Era, and the Modern Era. We think an overarching theme throughout all eras is antimonopoly. Since the Founding, and continuing for over two-and-a-quarter centuries into the 21st century, antimonopoly policy has permeated public land law. In this article we show the persistence of antimonopoly sentiment throughout the public land history, from the Confederation Congress to Jacksonian America to the Progressive Conservation Era and into the modern era. 

Antimonopoly policy led to widespread ownership of American land, perhaps America’s chief distinction from England and Europe. The policy fostered acreage limits in federal grants, a preference for bona fide settlers, and eventually an evolution from land sales to free land under the Homestead Act. Antimonopoly principles were also present in public timber, mining, and rangeland policies from the earliest days. In the Progressive Conservation Era antimonopoly fueled a public land withdrawal and reservation movement, landmark leasing and licensing programs that maintained public control over fuel minerals and waterways, and the first explicit federal policy concern over future generations. The modern era has seen the codification of multiple use management, the enactment of comprehensive land planning statutes, and the rise of multi-species concerns, among other antimonopoly policies.

Although antimonopoly policies seem to be under some threat from recent Congresses, a turn toward monopoly would amount to a renunciation of centuries of public land policy. This history strongly counsels against such these proposals as, however imperfectly realized on-the-ground, antimonopoly has been always been cardinal feature of public land law and policy and is deeply embedded in the nation’s identity as a reflection of republican values of individualism and equal opportunity.

More on antimonopoly in American natural resource law here.

Public utility, past and future

William Boyd recently posted "Public Utility and the Low Carbon Future", in which an interesting historical survey of the concept of public utility in Progressive, American thought serves as the backdrop for discussion of future climate policy. The historical part of the article connects the law of utility regulation to the thought of the American Legal Realists, institutional economists, and pragmatists. From the abstract:

This Article argues that a revitalized and expanded notion of public utility has a critical role to play in efforts to decarbonize the power sector in the United States.

PECO Delaware River Power Plant

In making this argument, the Article looks back to an earlier, more expansive concept of public utility as articulated by Progressives, legal realists, and institutional economists in the early twentieth century. This earlier concept of public utility contains valuable insights for dealing with the current challenges of decarbonization. The Article shows how this broader concept of public utility was substantially diminished by a confluence of external challenges and a sustained intellectual assault mounted by economists and lawyers starting in the 1960s. The narrowed understanding of public utility that resulted, it is argued, has distorted our views regarding the role of markets and disruptive technologies in the sector. In fact, basic public utility principles continue to govern a significant amount of activity across the power sector, including in both wholesale and retail electricity markets. And there are important unrealized possibilities embedded within the public utility concept that hold considerable promise for reforming current regulatory and business models in the face of rapid technological change and growing decarbonization imperatives.

Such principles and possibilities are particularly important in ongoing efforts to increase renewable energy and finance large low-carbon generation projects. They also hold great promise for ongoing efforts to plan for and optimize the integration of increasingly large amounts of distributed energy resources such as rooftop solar, demand response, and energy storage. Indeed, when one looks at the overall scale, complexity, and sequencing of investments needed to decarbonize the power sector over the coming decades (however it comes to be organized), it is clear that the broad concept of public utility offers essential tools for planning and coordinating such investments over the long time horizons contemplated and for managing a system of increasing complexity.

The public trust doctrine and origin stories

Michael Blumm and Mary Wood have posted Chapter 1 of their forthcoming The Public Trust Doctrine in Environmental and Natural Resources Law (Carolina Academic Press, 2013) on SSRN. According to the abstract, this casebook has a strong historical component:

The public trust doctrine (PTD) is an ancient property law doctrine which first surfaced in Roman law in the Justinian Code, was revived in medieval England largely through the efforts of Sir Mathew Hale, and became entrenched in American law in the nineteenth century through the process of statehood. In the twentieth century, the doctrine became a favorite of the law professoriate and the environmental community for its potential to recognize public rights in private property. Thus, the doctrine both promotes public access to trust resources and justifies public regulation of them. It also equips the public with the right to challenge governments concerning their management of PTD resources.