Finding Common Ground

By Hudson Kingston

Last June the first woman to win the Nobel Prize in Economics, Elinor Ostrom, died. She had won her award and made her career by expanding on the concept of the commons, as in “the tragedy of the commons”—a fundamental concept to environmental law. Essentially the idea (when it is simplified for lawyers) amounts to stopping private parties from squandering a resource by making private/public rights to exclude people from overusing/overpolluting/overfishing as none of us can be trusted to steward such resources. She brought new interpretations to the table, arguing that people could figure out ways to manage their commons to make resilient systems and communities. She made it clear that there is not just one way to preserve the resources that we all rely on. Systems, she found, did not all have to be top-down command and control, and they should treat complex problems with complex, particularized problem solving.

It may have shaken her confidence in humanity’s ability to deal with such big problems to have seen this summer’s record heat, largely blamed on global warming by those that go in for that sort of thing, destroythe farming economy of her home state of Indiana and the rest of the Midwest. On the other hand she may have found the silver lining. She may have even pointed to a new line of cases brought by Our Children’s Trust to protect the atmospheric commons under one of the oldest legal concepts still extant in American law.

The Public Trust Doctrine (PTD) historically applied to submerged lands and land up to the high-water mark along rivers, lakes, and other watercourses. These areas had to be held in trust by the sovereign for the use of all people, and as such any compromise of the trust (i.e. selling the trust property to private parties) could be voided; the state had to remain a good trustee in perpetuity for our posterity. Recently one court inTexas and one in New Mexico have made it possible for suits premised on an atmospheric PTD to proceed. Our Children’s Trust brought twelve state cases and a federal case to address global warming by asserting governments’ duty to protect our atmosphere (naturally, there have been mixed results). Depending on whoyou ask, it’s possible that the expansion of the PTD to the heavens is a sure sign that the sky is falling.

If one were able to ask Dr. Ostrom she may even point out that she told us so. Regardless of the eventual results in these cases, it remains a sterling example of how the fuddy-duddy old common law, the stuff that many assume is the defunct rubble on which our modern environmental statutes now rest, is still very much alive—in legal realms where modern regulation is outdated or insufficient this complex and responsive system of law may be the quickest route to a policy solution.


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