Introduction
Politics and law are in a roil. Supreme Court justices are given the same once-over that used to be reserved for rock stars. Political parties argue about the size of government but don't have clear ideas about what government is for. In the meantime, communities quietly gather to clean out their irrigation ditches or town parks. Computer geeks exchange source code at midnight, creating a common software that becomes the basis of stable, productive computer networks. And we all breathe the air, drink the water, and worry about how we will fare as we age.
Our lives are immeasurably enriched by the necessities of life like air and water, infrastructure like roads and the internet, and the great treasures of the world like the Grand Canyon and the Library of Congress. The necessities, infrastructure, and treasures fall into a broad category of things we share, called the commons. From the oldest of times we have created laws about how we will share the commons. These laws govern what is owned, who owns them, and who has access to them.
We believe that these laws have cross-pollinated and ripened into new possibilities for a coherent legal and political agenda. Here we offer a set of building blocks and blueprints for what the law ought to be and few broad-brushstroke strategies for getting there.
Many of the earth's resources such as the atmosphere, oceans, and public lands and waters have long been managed as commons, sometimes as open-access commons which may be freely used by all. As these resources come under greater and greater stress, we are called on to develop new and better ways of managing them. Most of our current legal structure is built on the premise that individual ownership leads to the most efficient use of most resources. Ownership, of course, implies excluding non-owners from free access to what is owned, whether it is ideas or land or manufactured goods. Because non-owners are excluded altogether or have to pay, owners reap benefits, and this presumably gives owners the incentive to efficiently transform resources into the kind of goods and services that provide those benefits. Society as a whole, the argument goes, benefits from the multiplication of private benefit. This argument is leading to proposals to privatize vast areas of what have always been the commons.
However, long experience demonstrates several shortcomings of this argument.
- The market model leads to valuation of resources over too short a time frame, since owners see little benefit in creating or preserving benefits that will accrue to future generations. Thus, the market leads inevitably to exhaustion of resources.
- The market is designed to promote and maximize economic activity and contains no mechanism for constraining the total impact of this economic activity on commons of limited size and scope. Even the planet has its limits, and we are running up against them.
- The market model does not promote cooperation and equity even when those modes create value. The market model therefore impoverishes us, both as individuals and as social communities. Some examples:
a. Individual private owners find it difficult to resist environmentally destructive exploitation of property for their own gain when other property owners are doing the same.
b. Ownership rights in the intellectual and creative commons (patents, copyright, and so forth) create incentives but also limit the flow of knowledge and culture that enrich society. Science, culture, art, and commerce depend on that flow.
c. If we divide an asset such as a watershed into private pieces we lose the efficiency of managing the resource as a whole.
The market is an important generator of value but it is not the only one. Organizing our lives to cooperate and share often serves us better in the long run. If we follow the market-efficiency philosophy exclusively, we lose the value created by cooperation and equity and the value of our common wealth. We cheat ourselves and future generations, to say nothing of the earth. For both practical and ethical reasons, therefore, we must strengthen the law of sharing.
Hidden like treasure in the depths of our legal system is the foundation of a law of the commons. This is an emerging field distilled from ancient doctrines and the exuberant experiments in the creative commons (internet, web, open source software) that give us a legal structure for cooperating. As such, it is one species of property law. But it is also a law of rights, duties, and powers that extends beyond narrowly construed property law. In this paper we lay out a foundation of commons law and an overview of avenues for advancing a commons legal and policy agenda.
Rights of commoners: the right to share and a right to your share
One of the most interesting ideas to take hold in the 1970s was the brainchild of an Alaska governor, Jay Hammond. He helped create the Alaska Permanent Fund to reap the benefits for all Alaskans of oil drilling on state lands. The Permanent Fund's earnings are paid out to each Alaskan as a dividend and the principal is allowed to grow to be used at a time when Alaska no longer gets significant revenue from oil production.
Alaska's Permanent Fund illustrates a large part of the law of the commons: establishing the rights of commoners (the public or a designated public) to the commons. One central right that emerges from all the legal rules to specific commons is equity, both within this generation and between generations. Said another way, each commoner has an equal right to her share of the commons, an equal opportunity of access. That access must be granted in a way that is nondiscriminatory—that is, not based on ability to pay or any other distinction except, in some cases, membership in a designated public such as residence in a state.
Access must also be granted in a way that does not diminish the commons. It isn't news that some resources like air or fisheries can be damaged if access is unlimited. But use and access limits must be set in such a way that one commoner (now or in the future) gets no more or less than her share. Access can be denied to protect a depletable resource but it cannot be denied discriminatorily. All members of the public, including future generations, should have equal opportunity of access to commons that belong to them. This means, among other things, that if we are using up certain resources we must ensure that the depleted capital is replaced with an equivalent--for example, by taxing gasoline and investing in conservation and renewable energy technologies.
Polluting a commons means taking more than your share. When that happens the principle of equity means you must pay for the damage. It also means that each commoner is compensated for the loss of his share. Similarly, benefits of a commons should accrue equally to all commoners.
Many ideas have emerged in response to changing technology and the increasing scarcity of various resources. Beginning in the 1970s a number of states amended their constitutions to grant new rights and assign new duties reflecting the increasing burden of pollution and damage to the commons. Florida crafted a polluter-pays provision to force agriculture to clean up Lake Okeechobee. Similarly, the 1982 Law of the Sea Convention fully embraces the idea of equal access by asserting that places and things that are our common heritage do not belong to any one nation; they belong to all of humanity. As such, no nation can claim exclusive ownership or dominion over the treasures of the oceans.
Equity and Future Generations
One of the joyful peculiarities of commons law is the emerging right of future generations to access the commons. At present future generations have not been given an absolute right in common law (the body of law formed by court decisions) to any specific commons that trumps the rights of the present generation, but it could be argued that preservation of the earth requires that future generations have interests that must be recognized by the present generation. Present generations can develop and strengthen laws by which we require ourselves to recognize the interests of future generations and that create a mechanism (such as a guardian) for those interests to be represented in court.
The interests of future generations have been explicitly established in some constitutional and statutory provisions. For example, the Montana constitution says "the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations." Similarly, the goal of the act governing the national parks is to promote and regulate the use of the parks "by such means as will leave them unimpaired for the enjoyment of future generations." National Park Service Organic Act, 16 U.S.C.1.
Other nations have created mechanisms for protecting the interests of future generations. The Israeli government has a commissioner for future generations who reviews Israeli Knesset proposals for their impact on generations to come.
The responsibility toward future generations is most pressing with regard to the commons that are essential for life but can be used up or damaged by overuse. Many natural resources – such as fisheries, air, water, national parks, or forests – require special care so that this generation can use these gifts of the world and pass them on unimpaired to future generations.
Other commons, like the internet or music, do not suffer the same threats of overuse and, therefore, do not require the same levels of oversight and guardianship: their legal rules are different from depletable commons. In most nondepletable commons cases the legal rules will negotiate the boundaries between the commons and private property. In these cases equity, sharing, and open access can be powerful generators of economic as well as social value. In the emerging creative commons we are learning the advantages of being cooperative as well as competitive. The social rules we develop there can teach us how to cooperate to share and maintain the planet.
The responsibility of government: serving as a trustee
One of the oldest foundations of law for the commons is the public trust doctrine, which predates the Magna Carta and is part of the common law in most of the 50 U.S. states. The public trust doctrine stands for the principle that government holds the resources of the earth in trust for the benefit of all the people. This is conceived as an affirmative responsibility of government to manage these resources for the long-term benefit of the public. Historically, this doctrine has most often been applied to tidal waters and waters used for fishing, but the core values and interests are capable of much broader application. Versions of this concept have appeared in state constitutions and have been adjudicated in state and federal courts.
Under the public trust doctrine, the state does not own the commons outright, even the publicly owned commons, but rather holds them in trust. The people share them as beneficiaries of that trust, and the government serves as the trustee, managing them on behalf of the public, providing for equitable access and protecting them. This is the true meaning of that ancient public trust doctrine: the air, the water, the agricultural seed stock, wildlife, the Great Lakes belong wholly and indivisibly to the public, both present and future generations.
Many legal rulings and state constitutions assert the government's trustee role. One of the clearest statements of the public trust doctrine can be found in the Hawaii constitution, which says: "All public natural resources are held in trust by the State for the benefit of the people." [Added Const Con 1978 and election Nov 7, 1978]
Other constitutions, Montana's, for example, make clear what the trustee must do: "in order to protect and maintain the commons of the natural world," the legislature is charged with "administration and enforcement of this duty." This means providing "adequate remedies for the protection of the environmental life support system from degradation" and "adequate remedies to prevent unreasonable depletion and degradation of natural resources."
Preventing harm
Besides this affirmative obligation, the government also has the means to protect public health, safety, and welfare under what is known as the "police power." The power to prevent degradation and depletion of the commons is at the heart of this police power. The finest expression of this is a new legal idea, the precautionary principle. In 2004, the city and county of San Francisco adopted the precautionary principle as its overarching environmental ordinance. Here is how San Francisco defines the precautionary principle:
Where threats of serious or irreversible damage to people or nature exist, lack of full scientific certainty about cause and effect shall not be viewed as sufficient reason for the City to postpone cost effective measures to prevent the degradation of the environment or protect the health of its citizens. Any gaps in scientific data uncovered by the examination of alternatives will provide a guidepost for future research, but will not prevent protective action being taken by the City. As new scientific data become available, the City will review its decisions and make adjustments when warranted.
Where there are reasonable grounds for concern, the precautionary approach to decision-making is meant to help reduce harm by triggering a process to select the least potential threat. The essential elements of the Precautionary Principle approach to decision-making include:
- Anticipatory Action: There is a duty to take anticipatory action to prevent harm. Government, business, and community groups, as well as the general public, share this responsibility.
- Right to Know: The community has a right to know complete and accurate information on potential human health and environmental impacts associated with the selection of products, services, operations or plans. The burden to supply this information lies with the proponent, not with the general public.
- Alternatives Assessment: An obligation exists to examine a full range of alternatives and select the alternative with the least potential impact on human health and the environment including the alternative of doing nothing.
- Full Cost Accounting: When evaluating potential alternatives, there is a duty to consider all the reasonably foreseeable costs, including raw materials, manufacturing, transportation, use, cleanup, eventual disposal, and health costs even if such costs are not reflected in the initial price. Short- and long-term benefits and time thresholds should be considered when making decisions.
- Participatory Decision Process: Decisions applying the Precautionary Principle must be transparent, participatory, and informed by the best available information.
Before San Francisco's ordinance, the Supreme Court of Hawaii enforced the state's trusteeship over surface water by using the precautionary principle. The court required the state to take precautionary action in the face of scientific uncertainty to prevent harm.
Eminent Domain
Government also has the power to move private property to the public realm through eminent domain. Eminent domain is the process in which a unit of government takes possession of property for a public use, such as a road or a public park, and compensates the previous owner for the "taking." Courts are grappling with the proper exercise of this power.
One controversial application of eminent domain or takings law is what is known as a "regulatory takings": the assertion that an owner who loses effective use of a property through regulation must be compensated just as if the land had been bought for a public use. Even conservative commentators agree that regulations and assertions of government police powers over activities that would constitute a public nuisance – activities that damage the public welfare – should not be considered regulatory takings. But the legitimate scope of this police power in an era of ever greater pressure on the commons is a significant and growing battlefield. It is crucial to establish that the government has an affirmative obligation to use the precautionary principle, that is, to take preventive, protective action, and regulate private activities that damage the commonwealth and common health. Private property owners must accept this role of government just as they accept that they do not have to pay for the value added to their property when the regulations benefit them.
The other current eminent domain controversy stems from a 2005 case called Kelo et al. V. City of New London et al. In Kelo, the U.S. Supreme Court ruled that a government could take private property and transfer it to another private owner if it was for a "public purpose" such as economic development. The owners of the condemned land had argued that their property could not be taken unless it was for a public use such as parks, roads, or other public infrastructure. Objections to this decision have been vociferous and nearly universal. Government should not privilege one private party over another. It breaks a central rule of the commons, which is equity, not the ability to pay.
Now we have a rare opportunity to expand the law of the commons by establishing a clear principle on eminent domain: Use it only to expand the commons, not to demonstrate preferences between private owners.
The ten tenets of commons law
Ten basic principles emerge as a framework for commons rights, duties, powers, and responsibilities. These principles are not absolutes but working ideas that can be codified into rules and laws for specific commons.
- The commons shall be passed on to future generations unimpaired.
- All commoners have equal access to the commons, and use by commoners will be allocated without discrimination.
- Government's responsibility is to serve as a trustee of the commons.
- Publicly owned commons do not belong to the state but belong to commoners, the public.
- Some commons are the common heritage of all humans and other living beings. Common heritage establishes the right of commoners to those places and goods in perpetuity. This right may not be alienated.
- The precautionary principle is the most useful guide for protecting the commons for this and future generations.
- Eminent domain is the legal process for moving private property into the commons and shall be used exclusively for that purpose.
- Infrastructure necessary for humans and other beings to be fully biological and social creatures will reside within the domain of the commons. The positive benefits of the commons shall accrue to all commoners.
- The market, commerce, and private property shall not externalize damage or costs onto the commons.
- Damage to or loss of the commons shall be compensated to all commoners.
Conclusion
The pendulum of law has swung so far in the direction of private property rights that we have lost many of the rules and values of sharing. Legal dictionaries have a narrow definition of the commons, restricting it to public land like parks or town squares. We will know we have succeeded in expanding and reinforcing the law of the commons when the legal definitions are much broader and include pages of examples and law.
We can reinvigorate the commons through visionary approaches to the law. A new vision of the policy and rules that govern our life together could set the course for a robust cultural and natural world. The future depends on it.
Carolyn Raffensperger is Executive Director of the Science and Environmental Health Network (SEHN). This paper evolved from the ideas and comments of many people, including Joe Guth, Nancy Myers, David Bollier, and others. We at SEHN are especially grateful to our colleagues at the Tomales Bay Institute for stimulating our thinking on the commons and co-hosting with us a January 2006 meeting on the law of the commons that helped focus these ideas.
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