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Taking back the Commons: BP and the Ocean

By Carolyn Raffensperger

"But a renaissance, a rebirth occurs not just because there is a rising of images and archetypal symbols. A renaissance happens because the soul is breached, the psyche unlocked, and a flood of new questions are released as to who we are and what we contain."

Jean Houston

“Only a crisis - actual or perceived - produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around. That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes politically inevitable.”

Milton Friedman


Environmental law in the United States is predicated on a series of assumptions deeply embedded in free market doctrine.  The spawn of this radical free market ideology are things like "privatization is the best and highest use of all property"; "government by and for corporations"; "fossil fuels are essential and their consequent pollution is necessary."  The BP oil disaster is a result of these assumptions. The regulators at the Mineral Management Service (MMS) presumed that privatization of the ocean’s oil was in the best interests of BP and therefore the country and so it moved to expedite drilling rather than protect the public. Recent news that the administration is considering opening the Gulf up for more drilling and ending the current moratorium makes clear how pervasive these assumptions really are.

But the massive failure of both government to protect public interests and BP to be responsible for its mess didn't sit well with the public.  There was wall to wall outrage that BP acted as if it owned the ocean.  BP refused an EPA order to use less toxic dispersants. It kept scientists and the public away from the site itself and refused to make data public.  The public response has been vociferous, “BP does not own the ocean”.

The deep intuitive sense is that the ocean is a Commons—we all share it. Herons, whales, seaweed and humans. We have a right with all of these other beings and humans to care for it, to share in its bounty. The commons are the foundation of our economy. Without a healthy ocean, or local prairie or forest, without clean air and water, without the web of life, all of our dollars are worthless.

The idea of the commons is an ancient one but has been lost in the private property free for all of the United States. There’s a good historical reason for the ascendancy of private property in the U.S.--when we broke away from the British monarchy, owning land was the basis for citizenship, the right to participate in government. This is so deeply embedded in our cultural DNA that publicly owned land is often seen by the right-wing as a Communist plot.

But throughout our history we’ve also set aside public places such as town squares, national parks and shorelines or managed wildlife so anyone could get a hunting or fishing license.  Accordingly, the law of the commons in the U.S. looks more like a crazy quilt than an organized, clear framework. A year ago, I along with two co-authors set out to change that.  We wrote a paper that put forward a comprehensive law of the commons.

The law of the commons is ripe in the Friedman sense of policies that are kept alive and vibrant until they are needed.  Now that BP has demonstrated that the old idea of privatization of our shared resources is a big fail we can bring forward the robust alternative  and fully implement policies that protect the commons.

The corollary to the Commons is that government is the trustee (not the owner) of our shared wealth and must care for it on behalf of present and future generations.  Tweaking MMS or any other environmental agency won't suffice.  All of these agencies must become active trustees and develop new policies and strategies that reflect their essential responsibility to protect and restore the commonwealth.

The standard of care government must use to fulfill its responsibility as the trustee is the precautionary principle: “When an activity raises threats of harm, precautionary measures must be taken even if some cause and effect relationships have not been fully established scientifically.” This means our agencies must act on the best available information to prevent harm. The BP oil hemorrhage has demonstrated that cleaning up messes is far more costly than preventing them in the first place. Calls for the precautionary principle by scientists and those who love the Ocean have never been stronger or clearer.

We will know whether agencies have met their standard of care by whether we turn over commons such as the Ocean, air, wildlife, freshwater and parks to future generations in better shape than we got them.

The Gulf disaster was a breach of our soul. Ideas like the commons, the public trust responsibilities of government, and the precautionary principle are alive and available. It’s time to make them politically inevitable.