Environmentalism

Property In Ecology

|The Volokh Conspiracy |

Are property rights compatible with environmental protection? Might they actually be essential for effective conservation?

As Garrett Hardin observed in his seminal essay on the "Tragedy of the Commons," those ecological resources incorporated into property institutions tend to be managed better than those resources left in the open-access commons. Yet as Hardin also noted, it is one thing to establish property in land, particularly for purposes like agriculture, and quite something else to establish property rights in other resources.

Whereas most conventional environmental policy presumes the solution to environmental problems lies in government regulation, some researchers focus on ways to utilize property rights and property-based institutions to enhance environmental protection and encourage greater conservation.

In conjunction with the Property and Environment Research Center in Bozeman, Montana, we hosted a interdisciplinary colloquium on "Property In Ecology" at the Case Western Reserve University School of Law. The papers from this colloquium have just been published in the Natural Resources Journal. 

As I discuss in my introduction, the papers from the colloquium explore the potential for property-based institutions to preserve environmental values and enhance environmental protection. Through case studies, empirical assessments, and consideration of the institutional constraints that may alternatively facilitate or hamper private conservation efforts, these papers deepen our understanding of the institutional context in which conservation occurs and the potential for property-based approaches to supplement, if not supplant, traditional government management of natural resources and environmental regulation. Together, they aim to enhance the conservation potential of property institutions by looking at how such institutions may be extended and defended so as to maximize property's ecological potential.

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  1. Is it wrong of me, that when somebody says, “Property in ecology”, i hear, “Property in other people’s land.”?

    1. Water rights can work that way, so it’s not particularly crazy.

      1. When what you do on your property affects what people can do on their property, SOMEBODY’S property rights are going to be curtailed.

        Did nobody read the Property textbook far enough to get to the chapter on “nuisance”?

        1. It’s perfectly true, and legitimate under libertarian theory, that at least some forms of effects on other people are legitimately subject to regulation.

          Not all forms, though. It’s basically not my neighbor’s business whether I plant a flower bed in front of my house, or a rock garden, or a vegetable garden. They don’t have a property interest in their view of my property. (HOAs can change that, which is why we made a serious point of checking for HOAs when house hunting.) OTOH, if I start raising swine in the backyard, and the smell wafts over the fence, that IS their business. I’m actually affecting their property.

          When you start talking property in ecology, you can get in to demands that amount to insisting that I use my property in a way that is advantageous to somebody else, not merely a way that doesn’t harm them.

          1. ” It’s basically not my neighbor’s business whether I plant a flower bed in front of my house, or a rock garden, or a vegetable garden.”

            Unless one or more of them affects his property.

            “When you start talking property in ecology, you can get in to demands that amount to insisting that I use my property in a way that is advantageous to somebody else, not merely a way that doesn’t harm them.”

            Demands that don’t bind you are a problem for you… how?

          2. “OTOH, if I start raising swine in the backyard, and the smell wafts over the fence, that IS their business.”

            I have a hard time conceptualizing a logical distinction for this difference. In both circumstances, particles (light particles or microscopic molecules) are coming off of your property and on to mine in a way that offends my senses (sight or smell). Why is “I don’t like the way it smells” more of a reason for government intervention than “I don’t like the way it looks”?

            Is it the mode of creation? You aren’t creating the light particles, they’re just entering elsewhere and bouncing off your stuff, whereas you are creating the odor molecules? But you’re obviously responsible for what reflects. Is it a difference in actual, physical reactions, if it’s true that, say, odors can make you physically sick? But this isn’t tort law where we’re actually requiring it be shown that you suffered physical injury. It’s tough.

            1. ” Why is ‘I don’t like the way it smells’ more of a reason for government intervention than ‘I don’t like the way it looks’? ”

              Because you can readily build a fence or grow a privacy hedge for one, but it has effect on the other.

              If you don’t like the way my yard looks, don’t look at it; problem solved. But the eye has eyelids and the nose… is somewhat less subject to voluntary control.

        2. This reflects a fundamental misunderstanding. If the background rule (which we find in the earliest nuisance cases) is that the initial property right does not include the right to engage in activities that infringe upon one’s neighbors quiet enjoyment of their property, no one’s property rights need be curtailed. To argue otherwise is to confuse liberty with license and to endorse the idea that, say, laws against murder infringe upon the freedom of some people to use their own bodies as they wish.

          1. I’m not clear on the disagreement here.

            Brett: OTOH, if I start raising swine in the backyard, and the smell wafts over the fence, that IS their business. I’m actually affecting their property.

            Jonathan: the initial property right does not include the right to engage in activities that infringe upon one’s neighbors quiet enjoyment of their property, no one’s property rights need be curtailed.

            What distinction is being drawn?

            1. He’s addressing James Pollock, who said “SOMEBODY’S property rights are going to be curtailed.” He’s saying that the property right never did include the right of nuisance, so they aren’t being curtailed.

              1. Ah. Thanks.

          2. ” If the background rule (which we find in the earliest nuisance cases) is that the initial property right does not include the right to engage in activities that infringe upon one’s neighbors quiet enjoyment of their property, no one’s property rights need be curtailed.”

            When the neighbors change, and the new neighbors object to things the old neighbors didn’t object to, yes, rights can be curtailed.
            You see this near exurban boundaries, where residential uses of property replace agricultural. Agricultural uses on land that has not yet been converted to residential property can be (is) limited.
            If I’m raising swine on my property, and the smells waft over to the neighbors who doesn’t care because of the smell of his own swine stocks, my swine aren’t a nuisance. But when the neighbor sells off the property and his swine farm is now Crown Pointe Garden Estates, suddenly my swine stink after all.

            1. At least back in Michigan, the law on that was quite clear: If the nuisance (Pig farm, gun range, that sort of thing.) existed when your neighbor bought the property, it’s baked in, they’re out of luck.

              1. Yes, brett, coming to the nuisance is built into nuisance law. But when ENOUGH newcomers show up, they start to vote new rules. Out at the exurban boundary, where land is in the process of conversion from primarily rural uses (agriculture) to more civilized uses, the farmers get chased out. I went to high-school in a county that was primarily agriculture. Today, the semiconductor foundries are named after the names of the family farms they’re built on.

          3. “If the background rule (which we find in the earliest nuisance cases) is that the initial property right does not include the right to engage in activities that infringe upon one’s neighbors quiet enjoyment of their property…”

            But see: Coase, The Problem of Social Cost.

          4. Why can’t the background rule be that the initial property right does not include the right to quiet enjoyment of property? Every nuisance involves a mutuality of interests. Why the arbitrary bias towards “quiet enjoyment”? Why aren’t the loud enjoyer’s interests treated equally?

            1. You need a rule, and there are at least two possible reasons to favor this bias.

              1. It may be that it is easier/cheaper for the nuisance-maker to stop, or take steps to mitigate, than for the other property-owner(s), all the more so when there are many others. Hence there is an efficiency argument. (see: Coase, The Problem of Social Cost.) Unless you want to look at millions of cases individually, it’s probably wise to have a general rule.

              2. It discourages deliberately obnoxious behavior which, in extreme cases, can even be a form of extortion.

              1. “1. It may be that it is easier/cheaper for the nuisance-maker to stop, or take steps to mitigate, than for the other property-owner(s), all the more so when there are many others. Hence there is an efficiency argument. (see: Coase, The Problem of Social Cost.) Unless you want to look at millions of cases individually, it’s probably wise to have a general rule.”

                As Coase pointed out, you will get the same overall cost (“easier/cheaper”) regardless of the rule. The point of not having the rule, is that it allows private parties to resolve the dispute. How would you know whether it is “easier/cheaper” to the loud enjoyer relative to the quiet enjoyer, if you don’t know how valuable quiet and loud enjoyment is to each?

                “2. It discourages deliberately obnoxious behavior which, in extreme cases, can even be a form of extortion.”

                The interests are mutual. To the extent quiet enjoyers are the obnoxious ones, your rule just solidifies their supremacy over loud enjoyers. Why isn’t that state-enforced extortion?

                1. ” How would you know whether it is ‘easier/cheaper’ to the loud enjoyer relative to the quiet enjoyer, if you don’t know how valuable quiet and loud enjoyment is to each?”

                  Either way you choose for the general rule will have some specific cases where the general rule isn’t true.
                  Where, for example, a property that exudes noxious smells is ALSO the major employer in the town. Ask a Washingtonian if they’re familiar with “the Tacoma smell”, or an Oregonian what they remember most about driving through Albany, OR on I-5. Hint: paper mills.
                  In those cases, you can get a local ordinance that overrides the otherwise general rule, or the economic power of the “loud enjoyer” can be used to buy off the would-be quiet ones. And, of course, the general rule has a mechanism already; the doctrine of “coming to the nuisance”. You don’t get to complain that the airport next door to your new house has loud airplanes. It had loud airplanes when you bought it.

                  1. Your fumes examples highlight the mutual interests at stake. You can either have no smells or no paper mills. In this way clean smelling homes destroy paper mills just as paper mills destroy clean smelling homes. The issue is how we are going to adjudicate these disputes. Government fiat doesn’t weigh the mutual interests as accurately as private ordering.

                    1. Asserting your conclusion without anything to support it doesn’t solve anything, either.

                  2. In my home town in Michigan it was the Vlasic’s plant. Whole town smelled of pickles, but we did NOT lack for summer employment.

                    Later they switched to just repackaging pickles shipped bulk from China, and the town smelled much better. And the unemployed had plenty of time in which to enjoy that.

                    1. In the college town that contained my alma mater, it was burning the fields after the grass-seed harvest. Towering plumes of smoke, visible from dozens of miles away (if they happened to BE dozens of miles away.)
                      The rules changed when, one year, the field burning produced so much smoke that it caused such a massive pileup on I-5 that they had to close the freeway.

                2. As Coase pointed out, you will get the same overall cost (“easier/cheaper”) regardless of the rule.

                  That only holds if there are no transaction costs. In a great many cases transaction costs are significant, and would overwhelm any benefit from moving to a more efficient solution. In any situation where many are affected by the nuisance it’s going to be hard to negotiate a solution. The hog farm doesn’t just stink up one neighbor’s property, it stinks them all up.

                  Even a dispute between two parties can be tough to work out. Care to help me with a fence issue I’m dealing with right now?

                  The interests are mutual. To the extent quiet enjoyers are the obnoxious ones, your rule just solidifies their supremacy over loud enjoyers. Why isn’t that state-enforced extortion?

                  Depends on the individual circumstance, of course, but again, you need a baseline rule: drive on the right or on the left – it doesn’t matter as long as there is a rule. My opinion is that the nuisance-maker is usually harmed less by having to shut it down than the victim is by living with it. For one thing, again, there will often be one nuisance-maker and many victims. You may disagree, and situations differ, but there is value in a uniform rule, in part as a baseline against which specific objections may be considered.

              2. By the way, why can’t the general rule just be: no liability for nuisance?

                1. Probably because that would be likely to lead to people resolving their problems extrajudicially.

                  You know, can’t sue the neighbor to keep his dog from barking all night in the backyard, but this bit of antifreeze will do the job…

                  1. I’ve lived my entire life under the rule “liability for nuisance” and have never known anyone who sued a neighbor and recovering damages for barking dogs. People already deal with it extrajudicially.

                    1. I’ve never known anyone who sued the government over a taking, so that must not be a thing, either.

                    2. I’ve lived my entire life under the rule “liability for nuisance” and have never known anyone who sued a neighbor and recovering damages for barking dogs. People already deal with it extrajudicially.

                      That’s like saying the intersection doesn’t actually need that traffic light because there haven’t been any collisions. The rule prevents lawsuits.

                      Besides, who’s going to spend the money to sue over a barking dog?

                    3. “who’s going to spend the money to sue over a barking dog?”

                      You don’t have to sue. You call the Sheriff. If any suing needs to get done, the DA will take care of the paperwork.

                2. As an abstract matter the general rule can be anything. The problem is to decide which general rule works best.

                  A rule that actually assigns liability one way or another cuts a lot of fights short.

                3. By the way, why can’t the general rule just be: no liability for nuisance?

                  Come to think of it, that’s really just saying the “liability” is borne by the victim of the nuisance.

                  After all, again following Coase, assigning the liability is really assigning the property right. If I have a property right to “quiet enjoyment” my neighbor bears the liability for making excess noise. The neighbor must bear some cost – either compensate me or make less noise than he would like – if he wants to make noise.

                  OTOH, if he is entitled to make noise – if the property right in the noise level is his – I have to bear the cost. I have to install soundproofing, maybe, or put up with it, or not use my property in ways I would like.

                  So there are only two possible rules, plus the foolish option of having no rule.

  2. You would do well to look at how the so-called “North American Model” of fish and game management has worked out over the last 120 years. Hunters and anglers have skin in the game – the quarry they pursue and, because of the quarry’s existence, the sports they love – and in large part the management is paid for through their license dollars (and excise taxes on their equipment – a tax hunters and anglers asked the government to impose specifically to facilitate scientific management). Having skin in the game, they are both the strongest advocates for effective management and the loudest voices about whether management is being effective. To be fair, sometimes the ones who are loudest are also the least informed, but they do care. By having professional, scientific management to benefit quarry species, non-quarry species also benefit because they inhabit the same habitats the quarry species do.

    This stands in contrast to the privatized management which takes place in European countries – different models in different countries.

    Here, everyone benefits from our management model. In Europe, the benefits are more limited, accruing more to the owners. In that model, the owners have the incentive to make more profit from their position, exploiting the resource and managing for profit. Here, since the managers largely do not stand to profit, they manage more by science than balance sheet.

    Of late, there have been bills introduced in many state legislatures, largely sponsored or furthered by Big Ag and/or the relevant Farm Bureaus, all of which have been aimed at privatizing the heretofore public resources of wildlife and turning hunting and fishing into a profit-making enterprise. They usually come at it obliquely, stressing property rights and trying to change existing laws governing posting of property, but the objective remains: privatizing a public resource and turning it into a profit center. This has been, to say the least, controversial and contentious.

    I do not know whether the North American model can be extended to the entire “Ecology” (whatever is meant by that), but as a lifelong hunter and angler, I’m sure glad I live here and can both enjoy the fruits of this model and participate in the management, too.

  3. Sigh. I love the hint of private property rights instead of government regulation. But what the hell does “property-based institutions” mean?

    1. It’s not necessarily “private” property that would help, but any form of property rights. Without a commons you won’t see the widespread depletion that’s occurred frequently in the past.

      Right now much of the natural world we’re trying to keep “pristine” is exploitated by people who don’t have to care: slash-and-burn tribes, poachers, over-fishing, and over-hunting. This is especially common in nations that don’t or didn’t have strong property rights: USSR, Indonesia, Malaysia, isolated SA tribes, and corrupt African nations are examples. Much if it is held publicly here but it is still owned and reflected as such.

    2. Think things like ITQs as used in fishery management or the identification of non-use rights in property that can be acquired or transferred through easements and the like

  4. Whale populations might have done better than they did if the stocks or rights were owned by somebody, private or not. As it was, there was little incentive in keeping track of them outside of season, allowing the Soviets plenty of time to deplete them for little economic benefit. Tragedy of the commons.

    1. Whale populations might have done better than they did if the stocks or rights were owned by somebody, private or not.

      “Might” being a key word here. A standard problem in introductory finance is, “when do you cut down a tree?”

      Answer (given some oversimplified assumptions): When the tree’s expected future growth rate is less than what you can earn by selling the lumber today and investing the proceeds.

      So it would be with whales. If the value of your whale herd is not going to grow faster – if the whales are not going to procreate faster – than the return on selling them now you won’t bother maintaining it.

      I’m no expert, but I don’t think that happens.

      1. Whale carcasses go bad quickly. Soviet whalers were just looking as possible to meet quota; they didn’t actually have much value (most rotted) and they illegally harvested whales (depleted species, calving mothers, calves) that other nations’ whalers deemed more profitable to leave alone. Almost all of the late 20th century whale decline was due to Soviet quotas.

      2. It worked for North Pacific seals, which were hunted by the same nations and in similar manners, so why not whales?

        1. What worked?

          1. The North Pacific Fur Seal Convention, convened to address the devastated seal and otter stocks. It gave/recognized the US jurisdiction over seals for land-based fur hunting and banning pelagic sealing, accompanied with payments to other affected nations and guaranteed takes. Since we were now responsible for the seals rather than co-plunderers of the commons, we then issued a moratorium on the hunting to allow the stocks to recover. Since we had the rights and made payments, the other nations weren’t troubled.

            The seals did recover, although they’re still listed as vulnerable, though it’s not due to hunting anymore.

            1. So you’re suggesting an international agreement of some sort. OK.

              The principle, though, remains the same. The control has to be given to someone who values the continuation and growth of the population, a herdsman, in effect. Then the question arises as to who that is and where the value comes from. My suspicion is that in the case of seals the source of future value is clear. Whale economics may differ.

              IOW, Imagine that you owned the world’s seals, and your only interest was economic benefit to you. You probably would not want to kill and sell them all right away, because the value of the population will grow at a rate faster than what you could earn on the money.

              Would that also be true of whales? If not, you need a herdsman who attaches value to the continuation of the species for its own sake, and its ecological benefits.

  5. “A standard problem in introductory finance is, “when do you cut down a tree?”

    Answer (given some oversimplified assumptions): When the tree’s expected future growth rate is less than what you can earn by selling the lumber today and investing the proceeds. ”

    Assuming that a tree’s only value lies in lumber. Out here in the west, the timber companies that were used to extensive subsidies from the government got a little put out when the federal government began taking considerations for the value of timberlands as other than standing lumber, and took public lands to use for recreation, and some for natural habitat, instead of selling the trees as lumber to be extracted. Some of the timber companies actually had to start paying market price for raw timber!

    1. That’s one reason I specified “oversimplified assumptions.”

      1. OK, conceded.

  6. I think a key distinction has to be made.

    There are those land owners who primarily need a healthy ecology to succeed (farmers, ranchers, sportsmen, fishing industry, etc.), and then those who primarily use ecological assets (e.g. water, soil, air), as part of their manufacturing/business process (e.g. coal mines/plants, industrial plants that release pollutants into the air/soil/water), and yes I realize there’s some overlap (i.e. farmers use water).

    For those who have a great interest in a healthy ecology, then yes, the open market approach can work.

    But for those who “eat” ecology, then obviously there’s needs to be govt oversight and regulation.

  7. As part of my business and econ BA, I took a course in environmental economics. It was undergraduate so it’s not like you can read this paper online, but a partner and I wrote a paper about how quotas actually hurt conservation efforts. By quota, I mean any sort of fixed value or goal for conservation effort, like “500 breeding pairs by x date.” These sort of arbitrary metrics and outcome-based policies result in authoritarian EPA regimes trying to force compliance and often failing in the process through negative reinforcement and denial of reality. Why do I bring this up? Because of this interesting case of property rights and the EPA.

    One of the examples I used of the ineffective nature of quotas was the story of the Red Cockaded Woodpecker in North Carolina. I’m going to go insane trying to find this story online again, but long story short, the Fish and Wildlife Service, via the Endangered Species Act, can basically fine the shit out of you for not complying with their regulatory regime.

    There was a farm owner who remediated a previously cleared forest and made a decent living for himself. His tree farm did so well that it became a wildlife preserve of sorts. These woodpeckers started to settle in his farm and that’s when the Fish and Wildlife Service showed up. They use the ESA to effectively seize his land and forbade him from harvesting trees that were part of the woodpecker’s habitat. As a result, he eventually decided to start a fire and clear a large portion of his farm to disconnect it from the woodpecker habitat. Worse yet, at the time, he was getting ready to retire and pass the farm on to his son. His son, of course, would technically own the full farm, including the parts the FWS seized from him. Guess what that means? Yep, he’s paying inheritance tax on a farm he cannot operate, cannot profit from, AND must pay to maintain or risk being not in compliance and paying excessive fines.

    If anyone can help me relocate this story I would really appreciate it.

    1. I found some abstracts from what I think might be the original paper by Lueck and Michael, and while I didn’t realize it at the time, it seems Prof. Adler here actually wrote about this same issue as well. Neat!

      https://object.cato.org/sites/cato.org/files/serials/files/regulation/2007/12/v30n4-6.pdf

    2. Sounds like the Family Guy episode when Peter had baby birds living in his beard.

      Also, negative reinforcement you say?

      https://www.youtube.com/watch?v=LhI5h5JZi-U

    3. I’d like to see the details here before I fully buy this sad tale.

      Among other things, a farm that generated only “a decent living” probably wouldn’t be worth enough to trigger an inheritance tax. Plus, I would assume that little value would be assigned for these purposes, to areas that couldn’t be used.

      But those are just assumptions.

      1. That’s my poor choice of words. The farm was worth a lot. I just meant he did really well for himself.

        The Lueck and Michael paper isn’t exactly what I read back in college, but you can find it on JSTOR and they mention the story I was remembering.

        https://www.jstor.org/stable/10.1086/344670?seq=1#metadata_info_tab_contents

        I re-read the study and the farm owner in question was Mr. Ben Cone. He made a takings claim against the FWS for $1.4 million. He didn’t burn his farm, but he increased the amount he harvested to distance the rest of the farm from the woodpecker population.

        1. I tracked down a few articles. From what I can tell he did indeed increase his harvest. I found no reference to estate tax, but he did apparently have to pay property tax on the unusable land. Whether he was able to have that taken into account in the assessment is not clear to me. Nor is the outcome of the takings claim.

          Regardless of details, the story does suggest that the ESA could stand some improvement.

    4. One of the problems with quotas or the like in some areas is that animals don’t necessarily stay in one place. Most of the animals in my state have wide ranges (migratory birds) so it’s hard to keep track of what’s working and what’s not. They do have other methods to try, though conservation here is mostly focused on habitat (wetlands or open prairie) rather than individual animals.

      1. Another argument I made against quotas was trophy hunting. Instead of going for a set population and screwing over anyone who gets in the way, trophy hunts allow for conservationists and hunters to legally transact. Hunters support the continued conservation and repopulation of animal species so they can continue to hunt them in the future and conservationists acquire valuable resources that assist them in their efforts.

        I haven’t read much about it, but the logic behind trophy hunting makes me wonder about the viability of privatizing national parks and waterways.

  8. The Nature Conservancy has been implementing property-based conservation measures for a long time, buying sensitive land outright or purchasing conservation easements at negotiated prices.

    Someone who was in a hurry to make more conservationism happen could build on that, for example with tax breaks for selling conservation easements.

  9. As a sailor I have a somewhat different view of the term commons. While the LOS (Law Of the Seas) has historical import it is currently failing to address current issues. A quick google search will reveal six of the most polluting rivers in the world are in Asia; along with Africa and India also being leaders. This includes plastic which has become ever present in the ocean; and many fish swimming in it that we eat. Google micro plastic in fish for details. As others have noted while there are rules related to over fishing they are ignored by many countries. Carnival Cruise lines have been fined tens of millions of dollars for dumping trash, oil, and other junk in the oceans and they (along with other cruise lines) view it as a cost of business.

    In my mind the worlds oceans are the second biggest commons (the atmosphere is the first) and quite frankly the most abused. Sad to say I see no way to stop abusing either.

    1. As for dumping, Carnival should consider it a cost of doing business, and the fine wouldn’t be so high as to absolutely prevent it.

      But the fine should be high enough to fully fund the remediation of both the seen and the unseen dumping. If it’s more efficient for every ship (or even some ships) to dump and then pay to have someone else remediate then that’s what we should want to happen. I was a sailor too, and the way the US Navy (officially) does it seems to make the most sense: biodegradable trash is compacted into metal cages with holes, then dropped into the sea to sink to the bottom and bring those nutrients down, while not edible wastes as returned to shore.

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