The marine "commons" discourse

Next in the series of posts (the last one is here) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'". The abstract:

Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

Regional planning in a decentralized state

The early-modern Netherlands continue to inspire interesting historical scholarship on environmental regulation (see, e.g. here). Last year's Environment and History had an article by Milja van Tielhof, "Regional Planning in a Decentralised State: How Administrative Practices contributed to Consensus-Building in Sixteenth-Century Holland". The abstract:

This article examines how a regional drainage system in the northern part of Holland in the Late Middle Ages could emerge despite the fact that the weak central state was hardly able to provide the necessary coordination nor prevent free-riding. Institutions, defined as rules and norms, including practices, procedures and techniques, play a key role in the argument. Four traditional administrative practices are identified as essential to the emergence of regional water control: a broad consultation process, by which opponents of new plans were also heard; landowners giving their explicit consent to plans and their costs; the proportional division of the costs; and the use of compensation for damage suffered. These practices respected local autonomy and broadened the level of support among the local stakeholders. The effectiveness of the practices was strengthened when they were used in combination with a technique provided by the Habsburg state: the enqueste or inquiry. This was a technique for gathering reliable, relevant and detailed information at the local and regional level. In this case study, the information on landscape and water use, collected by the 1544 Commission of Inquiry, facilitated cooperation between communities that enjoyed a high degree of self-governance.

Cold-War commons

Next in the series of posts on "The Tragedy at 50" (the last one is here), we have Monica Eppinger's "Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space". The abstract:

Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedies, central to a post-Cold War project of advancing “market democracy.” Meanwhile, the notion of an “illiberal commons” stands ready for redeployment in future situations conceived as tragically problematic.

Historical analysis in environmental law

I'm pleased to announce that The Oxford Handbook of Legal History, edited by Markus Dubber and Chris Tomlins, has now been published, and it includes my article on "Historical Analysis in Environmental Law", on which I've blogged here. The book is available both in print and online. I'd be happy for any comments on my paper!

Free the beach

The Boston Review recently published Andrew Kahrl's "Free the Beach", an essay adapted from his Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale UP, 2018). Here's an excerpt that digs into the connection between land privatization and racism:

For millennia, beaches have been considered public property. The legal principle of the public trust doctrine, which dates to the ancient Mediterranean world, has long held the seashore as public land. In 1892 the U.S. Supreme Court validated the public trust doctrine with its decision in Illinois Central Railroad v. Illinois, which ruled that land covered by tidal water belonged to the public, with the state acting as a trustee. States were obligated to maintain that trust and protect the public’s right to access the shore in perpetuity.

Each state, however, marked the line separating public land from private property along the shore at a different spot—some drew the line at high tide, others at low tide, still others at the vegetation line—and devised different definitions of what constituted legitimate use of the public’s shore. Some states conceived of the public’s right to the shore in broad terms. Other states hewed closely to the public trust doctrine’s original intent. Massachusetts and Maine, for instance, held that the public’s right to the foreshore applied only to fishing and navigation; that private ownership extended down to the low-water line; and that the recreational use of private property was tantamount to an unconstitutional taking of private property. Connecticut drew the line between public and private property at the mean high-water mark, and its courts recognized swimming and recreation as legitimate uses of public trust lands.

While Connecticut’s supreme court upheld the public status of the foreshore, the actions of shoreline developers, backed by the state legislature, made it increasingly difficult for members of the public to enjoy their beach access rights. Beginning in the 1880s, wealthy families began building summer cottages along remote sections of shore in the state’s eastern half. In 1885 the state legislature granted a charter to a group of families who owned cottages in Old Saybrook. The charter gave the Fenwick Association the power to levy its own taxes and enact zoning restrictions. During the late nineteenth and early twentieth centuries, other small groups of families successfully petitioned the state legislature for charters to form what came to be known as private beach associations. Many of these early beach associations formed as an expeditious way of meeting the basic needs of summer homeowners in remote, undeveloped areas lacking in basic infrastructure and services. 

The water commons beyond property and sovereignty

Irrigation canal in Provence

Continuing the series of posts on "The Tragedy at 50" (the first one is here), here's the abstract of an article with a new, historical perspective on commons debates: Alice Ingold's "Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty":

Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethnogeographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public. 

Moving watersheds, borderless maps, and imperial geography

The Historical Journal recently published Kyle Gardner's "Moving Watersheds, Borderless Maps, and Imperial Geography in India's Northwestern Himalaya". The abstract:

This article uses the British colonial history of border making in northern India to examine the assumptions and contradictions at work in the theorizing, configuring, and mapping of frontiers and borders. It focuses, in particular, on the development of the ‘water-parting principle’ – wherein the edge of a watershed is considered to be the border – and how this principle was used to determine boundaries in the northwestern Himalaya, a region that had long-established notions of border points, but no borderlines. By the twentieth century, the water-parting principle would become the dominant boundary logic for demarcating borders in mountainous regions, and would be employed by statesmen, treaty editors, and boundary commissioners around the world. But for the northwestern Himalaya, a region that British colonial officials considered to be the ‘finest natural combination of boundary and barrier that exists in the world’, making a border proved much more difficult than anticipated.

The banality of the Tragedy?

As promised, I'm going to post on some of the articles that were published as part of the issue of Theoretical Inquiries in Law on "The Tragedy at 50", which I co-edited with Carol Rose. These articles attempt to provide historical context for the modern commons discourse.

First up is Stuart Banner's "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin". The abstract:

The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why  The Tragedy of the Commons nevertheless quickly attained its canonical status.

On the other hand, Nathaniel Wolloch has a different view, as evidenced in his "Before the Tragedy of the Commons: Early Modern Economic Considerations of the Public Use of Natural Resources":

John Stuart Mill

This article distinguishes between the precise legal and economic approach to the commons used by Hardin and many other modern commentators, and the broader post-Hardinian concept utilized in environmentally-oriented discussions and aiming to limit the use of the commons for the sake of preservation. Particularly in the latter case, it is claimed, any notion of the tragedy of the commons is distinctly a modern twentieth-century one, and was foreign to the early modern and even nineteenth-century outlooks. This was true of the early modern mercantilists, and also of classical political economists such as Adam Smith and even, surprisingly, Malthus, as well as of Jevons and his neoclassical discussion aimed at maximizing the long-term use of Britain’s coal reserves. One intellectual who did recognize the problematic possibility of leaving some tracts of land in their pristine condition to answer humanity’s need for a spiritual connection with nature was J. S. Mill, but even he regarded this as in essence almost a utopian ideal. The notion of the tragedy of the commons in its broader sense is therefore a distinctly modern one.

Banner and Wolloch come from different disciplinary backgrounds, which may affect their understanding of what exactly the "tragedy of the commons" is supposed to mean. (I, for one, am with Banner on this.)

The Powell memo

The website for the book The Republican Reversal: Conservatives and the Environment from Nixon to Trump by James Morton Turner and Andrew C. Isenberg (Harvard UP, 2018) includes a range of interesting primary sources on the topic. Among them is a pdf of a 1971 memo by Lewis Powell to the US Chamber of Commerce, described on the website:

Soon-to-be Supreme Court justice Lewis Powell wrote this memo for the U.S. Chamber of Commerce in 1971 as conservatives grew concerned about the growing influence of liberals and an expanding regulatory state.  It offered conservatives a roadmap for exerting their political power in the defense of individualism and free enterprise.

It's a pretty amazing document. Here's an excerpt:

As every business executive knows, few elements of American society today have as little influence in government as the American businessman, the corporation, or even the millions of corporate stockholders. If one doubts this, let him undertake the role of "lobbyist" for the business point of view before Congressional Committees. The same situation obtains in the legislative halls of most states and major cities. One does not exaggerate to say that, in terms of political influence with respect to the course of legislation and government action, the American business executive is truly the "forgotten man".

Current examples of the impotency of business, and of the near contempt with which businessmen's views are held, are the stampedes by politicians to support almost any legislation related to "consumerism" or to the "environment".

For more on the memo, see here.

Goodbye Abbey, hello intersectional environmentalism

Sarah Krakoff recently posted a critical take on Edward Abbey on Environmental Law Prof Blog. Some highlights:

Abbey’s love-letters to Utah’s red-rock country spawned generations of canyoneering backpackers, and still serve as the heart of aesthetic and political defenses of desert wilderness. Ever since, Abbey has been attacked and defended. Was he racist, misogynist, and anti-immigration? He was. His views of Black and Brown people were deplorable, and his descriptions of women were retrograde. And yet, his defenders inevitably retort, we need his irascible, cranky, and irrepressible voice today more than ever.  

But do we? I have come to (re)bury Edward Abbey, not to praise him. (Abbey died in 1989 at the age of 62; he was buried illegally on public lands.) Or more accurately, to make a pitch for putting Abbey in his place and moving on. That place should be in the context of what it means to protect those same dramatic and soul-stirring landscapes without perpetuating an alienating version of what it means to be “truly wild,” or “truly radical,” or “truly environmentalist.” The problem with re-lionizing Abbey in 2018 is not just that he was sexist, racist, and xenophobic. But also that those views were sewn into his brand of so-called radicalism. They constituted the lenses through which he saw the landscape he aimed to protect.

What Abbey saw were beautiful empty places where white men (quite specifically) could be free and wild. Their version of wilderness preservation, even supplemented by the occasional nod to the evils of growth-dependent and extraction-based economies, was oblivious to the structures that enabled their seemingly unmediated encounters with the desert. Those structures included brutal and unscrupulous campaigns to dispossess Native people of most of southeast Utah. They included the failure of post-Civil War efforts to democratize homesteading by including eligible African Americans eager to flee the South. And they included, time and again, the cultural acceptability of exploiting women, both by treating them as fungible sex toys and by relying on them to mind the homestead and raise the young’uns. Abbey’s version of radical environmentalism assumes away all of the inequalities baked into his ability to be a free man in canyon country. Abbey also managed to alienate lots of white men while he was at it. He scorned ordinary work as part of his critique of corporate and industrial interests and romanticized manual labor even while he railed against ranchers and farmers in his midst.