Academic journal article Forum for Applied Research and Public Policy

Protecting the Global Commons: The Surest Way to Avoid Abusing the Atmosphere Is to Reach International Agreement on Its Exploitation

Academic journal article Forum for Applied Research and Public Policy

Protecting the Global Commons: The Surest Way to Avoid Abusing the Atmosphere Is to Reach International Agreement on Its Exploitation

Article excerpt

In a seminal paper written more than three decades ago, ecologist Garrett Hardin popularized the concept of the "tragedy of the commons." (1) In simple terms, the tragedy of the commons arises when a commodity is under common ownership--or unowned--and everyone has a right to exploit it. The net result is that the commons gets overused. Any detriment resulting from exploitation of the commons is shared across all users. So, if I discharge one unit of a pollutant into a commonly used watercourse, my pollution will be dispersed so that each of 100 users will only suffer one 100th of the burden. What I forget, of course, is that if each of the other users also discharges one unit, I will get my own pollution back. As Hardin noted, "Freedom in a commons brings ruin to all."

Today, we are facing the tragedy of the commons at a global level. For years, for example, we fished the seas without concern over fish population dynamics, just as we now continue to burn fossil fuels with impunity. To put it in biological terms, the destruction of our global commons is the result of humans, as a species, exceeding the carrying capacity of their environment. The natural consequence, which some people proclaim is sooner or later inevitable, is a human population crash.

Common Law

In the traditional English common law system, lawsuits for environmental damage grow out of a definable measure of harm to property or person-that is, the claimant has suffered a loss because of some infringement to his or her special interest. Lawsuits in nuisance (2) or negligence (3) have both been successfully brought to address environmental wrongs. In the famous 19th century case of Rylands v. Fletcher, (4) in which water from a breached reservoir flooded a neighbor's mine, the court held that even though the property owner was not negligent, he was nonetheless liable for damage arising from the escape of unnatural substances held on his property. On the face of it, the court's holding in Rylands provides an obvious basis for a claim of environmental liability. In practice, however, the courts have adopted a restrictive approach to its application, preferring instead to rely on statutory provisions as a basis for liability. (5)

In any event, none of these tortious rights is of any avail if the person affected has no interest in bringing a lawsuit or, after winning one, decides to use the awarded damages for something other than restitution.

Similar difficulties arise in challenges to public administration and, in particular, actions against planning decisions. In an attempt to keep the floodgates closed against excessive lawsuits, the courts have adopted a cautious approach towards relaxing the rules concerning who has standing to sue. The basic rule of standing is that you cannot maintain a lawsuit unless you can show an interest in the matter over and above that of the public in general. Too narrow an interpretation of that rule has prevented special interest groups, such as various environmental organizations, from succeeding in challenges to administrative decisions. (6)

Opportunities for citizens and nongovernmental organizations to redress environmental wrongs are therefore severely limited. Protecting the environment, in fact, is difficult unless you own it. Trees may have rights, (7) but the courts tend not to recognize them. No doubt, the surest way of safeguarding the environment from deliberate damage is to hold a proprietary interest in it. Not surprisingly then, powerful conservation organizations such as the National Trust and the Royal Society for the Protection of Birds in the United Kingdom and the Sierra Club in the United States are either major landowners of environmentally sensitive land or contributors to land acquisition.

Freedom of the Commons

It could be argued that ownership carries with it responsibilities as well as rights. Unfortunately, the concept of a duty of care applies to our relationship with our neighbors (8) but not, generally, to our environment. …

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