The Jurisdictional Anticommons

Abstract

When multiple stakeholders have the right to veto use of a resource, it may go to waste. This is the problem of the anticommons. When the stakeholders with veto-rights are regulators, it is known as the regulatory anticommons. When the multiple regulators come from different jurisdictions, it raises a special problem, which this paper names the jurisdictional anticommons. This jurisdictional anticommons is a common roadblock to linear energy transport infrastructure: oil, gas, and renewable power may be locked in if the pipelines and power-lines that would bring them to market may be vetoed by the jurisdictions they must cross. The jurisdictional anticommons is a thorny, growing problem for resource development around the world. Sovereignty, like private property, admits few exceptions, but this paper suggests how property law might also suggest some solutions.

Keywords: anticommons, natural resources, property law, energy law, negotiation, energy law, eminent domain, veto gates, law and economics

JEL Classification: K11, K20, K23, K32, K40, Q20, Q28, Q30, Q32, Q33, Q35, Q38, Q40, Q42, Q48, Q50, Q54, Q55, Q56, Q58