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Abstract:
Garrett Hardin's famous article, "The Tragedy of the Commons," recognized the overuse that occurs when resources are freely available to everyone in common. This essay examines why it has often proven so difficult to solve commons dilemmas through regulation, privatization, and other measures. Using fishing, groundwater extraction, and global warming as examples, the essay suggests that stakeholders find it particularly difficult to agree on solutions, even where a universally imposed solution would be in most stakeholders' interests, because people are reticent to accept current losses to avoid future risks, the dilemmas are characterized by significant scientific and social uncertainty, and users heavily discount the probability and cost of future losses. Turning to potential ways around these obstacles, the essay discusses why commons dilemmas cannot be solved purely through legal coercion or changes in environmental attitude. The essay suggests a variety of ways to improve the chances of convincing resource users that there is a problem that must be addressed and then getting them to agree both on a solution and how to allocate the burden of that solution.

Abstract:
A quarter of a century ago, Professor William Baxter published a widely read and influential book on the law and economics of pollution control entitled People or Penguins: The Case for Optimal Pollution. This paper pays tribute to Professor Baxter by using the logic of People or Penguins to examine current efforts to preserve biodiversity in the United States. The paper criticizes the failure of the Endangered Species Act to fully consider the costs of its regulatory mandates, but recognizes the complications of determining and balancing the benefits and costs of biodiversity preservation. The paper examines the Safe Minimum Standard Approach, urged by some economists as an alternative to traditional cost-benefit analysis in contexts such as species preservation, but ultimately rejects it as neither justifiable nor helpful. The paper suggests that domestic biodiversity policy should start by eliminating public subsidies that encourage the economically inefficient destruction of ecosystem components, by finding ways of commodifying ecosystem services, and by establishing a system of taxes and subsidies that send correct economic signals to property owners. Because many of these goals will be politically difficult to achieve at least in the short run, the "tailored commands" of the Endangered Species Act will continue to play an important role in protecting valuable species and ecosystems. But incorporation of rough cost-benefit considerations (taking account of uncertainties, irreversibilities, and intergenerational tradeoffs) into the Endangered Species Act would help the nation achieve a more optimal use of its scarce societal resources.

An earlier version of this article was announced as Stanford Law School, John M. Olin Program in Law and Economics Working Paper No. 173. The working paper can be downloaded from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=149728

Abstract:
A quarter of a century ago, Professor William Baxter published a widely read and influential book on the law and economics of pollution control entitled People or Penguins: The Case for Optimal Pollution. This paper pays tribute to Professor Baxter by using the logic of People or Penguins to examine current efforts to preserve biodiversity in the United States. The paper criticizes the failure of the Endangered Species Act to fully consider the costs of its regulatory mandates, but recognizes the complications of determining and balancing the benefits and costs of biodiversity preservation. The paper examines the Safe Minimum Standard Approach, urged by some economists as an alternative to traditional cost-benefit analysis in contexts such as species preservation, but ultimately rejects it as neither justifiable nor helpful. The paper suggests that domestic biodiversity policy should start by eliminating public subsidies that encourage the economically inefficient destruction of ecosystem components, by finding ways of commodifying ecosystem services, and by establishing a system of taxes and subsidies that send correct economic signals to property owners. Because many of these goals will be politically difficult to achieve at least in the short run, the "tailored commands" of the Endangered Species Act will continue to play an important role in protecting valuable species and ecosystems. But incorporation of rough cost-benefit considerations (taking account of uncertainties, irreversibilities, and intergenerational tradeoffs) into the Endangered Species Act would help the nation achieve a more optimal use of its scarce societal resources.

Abstract:
For the past thirty years, the Magnuson-Stevens Fishery Conservation and Management Act has served as the primary legislative mechanism for conserving fish populations in United States marine waters. Although amended in 1996, the Act is still far from achieving Congress's goal of sustainable fisheries, as the social costs of fishing continue to outweigh the benefits. In this article, the authors describe the ways in which comprehensive ocean zoning could help remove the logjam that currently plagues ocean management. Under ocean zoning, the government would divide all or some of the ocean under its jurisdiction into a number of different zones or areas and then prescribe what uses of the ocean could be made in each zone. The authors argue that this would create a framework for both the re-alignment of industry incentives as well as the attainment of the broader goal of healthier ocean ecosystems by leading the interests assigned to those areas to develop a sense of group property rights that will improve inter-group relations.

Abstract:
This Article considers how the twin concepts of "ecosystem services" and "natural capital" can help inform and improve environmental policy, particularly land and water protection, in the United States and globally. It identifies three possible benefits to greater understanding of the concept of ecosystem services: enhanced public support for protecting land and water; the creation of new markets for protecting land and water; and the expansion of criteria, beyond human health protection, for broadening environmental protection measures and measuring their success. The author argues that the first two benefits remain largely unrealized and suggests steps that could be taken to realize them. He emphasizes, however, that the final justification for focusing attention on ecosystem services - that they can provide broadened criteria for environmental regulation, help evaluate tradeoffs, and measure regulatory success - is perhaps the most important.

Abstract:
Ocean-zoning arguments often center on the biology of ocean species, the geography of fishing-use patterns, and the need for preventing use conflicts. Here we expand this discussion to the social and legal aspects of ocean zoning, focusing on comprehensive planning, segregation of activities into use-priority areas, and the allocation of user rights within each zone. The inclusion of all of these features within an ocean-zoning regime can be a catalyst for a variety of ancillary benefits, including opportunities for user groups to form informal or formal long-lived institutions and a reassessment of the focus and scope of the regulatory institutions involved in ocean management. Along with the ability of users to negotiate and trade within and between zones, both features will lead to improved conflict resolution, efficiency of use, and ecosystem stability - critical components for the production of ecosystem services and maintenance of biological and human economic benefits.

Marine spatial planning, recreational fishing, catch shares, individual fishing quotas

Abstract:
In 1995, in response to the distressed condition of the British fishing industry, the House of Lords held a series of hearings on "Fish Stock Conservation and Management." Lord Perry of Walton posed the straight-forward question of why regulation was not succeeding:

If one takes all the management systems into account - TACs (total allowable catches or annual quotas), number of days at sea and the decommissioning program - none of them has stopped the gross over-fishing that has taken place. There seem to be three factors to account for it: first, the scientific advice that is given; secondly, how far that advice is accepted by politicians who set the TACs and quotas; and, thirdly, whether the fishermen obey the regulations. Which of these are the most at fault at the moment?

Lord Perry's question led us to ask to what degree publicly available information in the United States could shed light on the sources of overfishing in individual fisheries - what we will call "regulatory overfishing." First, we set out a typology of the potential sources of regulatory overfishing. Next, we examine two case illustrations of federally managed, overfished fisheries in the United States. Each case generates important insights into the causes of regulatory overfishing and lessons for future management. In the final section of the paper, we make several suggestions aimed at improving fisheries management and the management process.

Fisheries management, annual quotas, total allowable catch, allowable biological catch, overfishing, scientific advice, implementation, enforcement