Academic journal article Environmental Law

Water Rights, Markets, and Changing Ecological Conditions

Academic journal article Environmental Law

Water Rights, Markets, and Changing Ecological Conditions

Article excerpt



Conventional environmentalist thought is deeply suspicious of private markets and property rights. Mainstream environmentalist thinkers believe the segmentation and commodification of land and natural resources place ecological values in peril. (1) As environmental law pioneer Eric T. Freyfogle counseled, individual parcels of land are, by definition, "a tiny piece of an entirety that is, in nature's terms, interconnected and indivisible." (2) From this perspective, property rights and markets must be curtailed and restrained if ecological values are to be preserved. (3) Property rights may be useful, but only if carefully limited; constitutional protection of property rights, on the other hand, would present a mortal ecological threat. (4) Markets may need to be tolerated for economic purposes, but only if subject to extensive regulation. Indeed, the organizing principle of much environmental regulation is that government intervention is necessary precisely because market institutions are incapable of safeguarding ecological values to any meaningful extent. (5)

Professor James Huffman is among those who have challenged this "orthodox" environmental view. (6) Through his scholarship and other activities over the past few decades, (7) Professor Huffman has argued that property rights and market institutions are not only "critical to the efficient allocation of scarce resources," (8) but are essential for environmental protection as well. (9) As Professor Huffman would have it, greater protection for property rights and respect for markets can lay the foundation for more effective environmental conservation and ensure that environmental goals are achieved in a more equitable fashion. If more conservation is what people want, markets will provide conservation more efficiently than government administration or regulation. As a consequence, much of Professor Huffman's scholarship has sought to defend the ecological value of markets and buttress the case for constitutional protection of private property rights. (10) Professor Janet Neuman, although not endorsing Professor Huffman's brand of "free market environmentalism," has also helped demonstrate the conservation value of property rights in natural resources, particularly in the case of water, through both her scholarship and her work as President of the Oregon Water Trust. (11) Reflecting on their work provides an opportunity to reconsider the role of property rights and markets in environmental protection.

The perspective that private property rights and market institutions provide an effective foundation for environmental conservation remains a minority view. (12) Despite the success of property-based conservation strategies and the prevalence of market-driven ecological advances, most environmental thinkers continue to view property and markets with suspicion. Property rights legislation and judicial decisions insulating private property rights from governmental regulation are derided as "antienvironmental," (13) and there is a never-ending stream of proposals for additional layers of regulation to constrain markets for the benefit of ecological resources. (14)

The conventional environmental view has drawn strength from the emergence of larger and ever more challenging environmental problems, many of which are the consequence of industrial development and other human activities. Chief among these is global warming, a "super wicked" environmental problem, if ever there was one. (15) It is now widely accepted that human activity has contributed to an increase in the concentration of. greenhouse gases in the atmosphere and this will produce some degree of atmospheric warming. (16) The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private property rights and constraints on markets, and not merely to the extent that market activities have themselves contributed to the accumulation of greenhouse gases in the atmosphere. …

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