Who Owns the Sky? Seventh Annual Lloyd K. Garrison Lecture on Environmental Law

The question Professor Torres poses in this article is: who owns currently unassigned natural resources? Professor Torres argues that for one such resource, the atmosphere, the public has an interest that must be accounted for in the construction of emission trading schemes. He argues that the doctrine of res communes is the foundation for the public trust interest held by the people. This commonly held interest requires that where the government has sanctioned the private trading of this asset, the government must account for the profits of such trades. In short, it is not the government\u27s to give away. Ancillary benefits associated with cleaner air do not offset the public\u27s interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. Moreover, economic research supports the conclusion that the efficiency gains made by using market mechanisms to reduce pollution also supports the capture by the government of scarcity rents created by the allocation of pollution rights. When the efficiency arguments are combined with arguments rooted in equity claims, some of the benefits of the market mechanisms may be diminished, but other values, like an aversion to gross inequities in the distribution of public resources, are optimized. We have looked at the sky as though it were a common resource free of any substantial public interest in its value and quality. By doing so, we have permitted the government to transfer a substantial public resource to private hands free of charge. It is this failure that the public trust doctrine is designed to prevent

Who Owns the Sky?

I argue that the public has a current and continuing interest in the air resource. This commonly held interest requires that where the government has sanctioned the private trading of this asset the government must account for the profits of such trades. In short, it is not the government\u27s property to give away. Ancillary benefits associated with cleaner air do not offset the public\u27s interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. This does not discount the government\u27s obligation to protect the resource from predation; it merely suggests that the government\u27s obligation is not exhausted by that effort. The government in those moments is acting both as a trustee and a referee. As a trustee it must protect the basic value of the resource. However, when it acts to alienate the resource to the detriment of other rightful claimants it has a high burden of justification that it must meet. While there has been no generalized public trust obligation imposed on the federal government, the federal government has recognized that it acts in a trustee capacity towards public resources. Yet this recognition can scarcely be enough. The limiting principle buried in that trustee role must arise from independent obligations that ground both claims to democratic legitimacy and protection of property. The law surrounding the evolution of the public trust doctrine suggests the contours of those obligations. In addition to the property roots of the public claim on the air resource, economic research supports the conclusion that the efficiency gains made by using market mechanisms to reduce pollution also supports the capture by the government of scarcity rents created by the allocation of pollution rights. Put another way, the protection of the property interest of the public that is reduced to tradable pollution rights makes economic sense, as well as being justified by our deeply held normative commitments reflected in property doctrine. Moreover, when the efficiency arguments are combined with arguments rooted in equity claims, some of the benefits of the market mechanisms may be diminished, but other values like our commitments to equality and democratic legitimacy may be strengthened. We have looked at the sky as though it were a common resource free of any substantial public interest other than the protection of its quality. Yet by taking this narrow view we have permitted the government to transfer a substantial public resource to private hands free of charge. It is this failure that I have been arguing against

The Meaning of Green Growth

Although the term is still rarely used in the United States, in recent years “green growth” has become part of the lexicon of global environmental policy. Unfortunately, although it is frequently cited as a public policy goal, green growth has remained vague and ill-defined, leading to conflicting interpretations and confusion over the distinction between green growth and related concepts like sustainable development. This paper seeks to clarify the meaning of green growth as a distinct concept, defining a “green growth frontier” of policies that dominate along both environmental and economic dimensions. The green growth agenda can be understood as moving societies toward that frontier of cost-effective and environmentally effective policies. Because movements toward this frontier generate gains along multiple dimensions, they should be less controversial and may allow for some progress toward economic and environmental goals even in contexts where broader political consensus over environmental policies is difficult to form

The Meaning of Green Growth

Although the term is still rarely used in the United States, in recent years “green growth” has become part of the lexicon of global environmental policy. Unfortunately, although it is frequently cited as a public policy goal, green growth has remained vague and ill-defined, leading to conflicting interpretations and confusion over the distinction between green growth and related concepts like sustainable development. This paper seeks to clarify the meaning of green growth as a distinct concept, defining a “green growth frontier” of policies that dominate along both environmental and economic dimensions. The green growth agenda can be understood as moving societies toward that frontier of cost-effective and environmentally effective policies. Because movements toward this frontier generate gains along multiple dimensions, they should be less controversial and may allow for some progress toward economic and environmental goals even in contexts where broader political consensus over environmental policies is difficult to form

Who Owns the Sky?

I argue that the public has a current and continuing interest in the air resource. This commonly held interest requires that where the government has sanctioned the private trading of this asset the government must account for the profits of such trades. In short, it is not the government\u27s property to give away. Ancillary benefits associated with cleaner air do not offset the public\u27s interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. This does not discount the government\u27s obligation to protect the resource from predation; it merely suggests that the government\u27s obligation is not exhausted by that effort. The government in those moments is acting both as a trustee and a referee. As a trustee it must protect the basic value of the resource. However, when it acts to alienate the resource to the detriment of other rightful claimants it has a high burden of justification that it must meet. While there has been no generalized public trust obligation imposed on the federal government, the federal government has recognized that it acts in a trustee capacity towards public resources. Yet this recognition can scarcely be enough. The limiting principle buried in that trustee role must arise from independent obligations that ground both claims to democratic legitimacy and protection of property. The law surrounding the evolution of the public trust doctrine suggests the contours of those obligations. In addition to the property roots of the public claim on the air resource, economic research supports the conclusion that the efficiency gains made by using market mechanisms to reduce pollution also supports the capture by the government of scarcity rents created by the allocation of pollution rights. Put another way, the protection of the property interest of the public that is reduced to tradable pollution rights makes economic sense, as well as being justified by our deeply held normative commitments reflected in property doctrine. Moreover, when the efficiency arguments are combined with arguments rooted in equity claims, some of the benefits of the market mechanisms may be diminished, but other values like our commitments to equality and democratic legitimacy may be strengthened. We have looked at the sky as though it were a common resource free of any substantial public interest other than the protection of its quality. Yet by taking this narrow view we have permitted the government to transfer a substantial public resource to private hands free of charge. It is this failure that I have been arguing against