Common Property, Regulatory Property, and Environmental Protection: Comparing Common Pool Resources to Tradable Environmental Allowances

Abstract

"In Anglo-American law, there has been only very limited tolerance for traditional customary community management for CPRs. Indeed, community-based management regimes (CBMRs) have faced considerable hostility from American law in particular, on the grounds that customary communities obstruct free alienability of property, hinder opportunities to create wealth, and impede democratic governance.

"Nevertheless, in recent decades, CBMRs have come to seem more attractive, particularly because they may offer new avenues to environmental management (as well as some degree of human rights protection for indigenous and traditional peoples). This paper will explore some of the strengths and weaknesses of traditional CBMRs in these dimensions. It will do so in part by drawing contrasts to a very different type of regime for environmental management, namely tradable environmental allocations (TEAs), as exemplified in sulfur dioxide quotas in the acid rain legislation of the United States, or in various programs for tradable individual fishing quotas in the United States and abroad. Among other things, the paper will compare the ways in which these very different regimes-- CBMRs and TEAs--set limits on total consumption of CPR resources, define individual entitlements to resource use, and provide for monitoring and enforcement. It will also discuss the different ways that these types of regimes respond to natural and commercial risk, and deal with resource scale and complexity."