Tag: the commons

New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations

By Jonathan Rosenbloom

State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges that cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this Article investigates whether municipal collaborations can encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. This Article draws on the late 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Ostrom’s research on geographically situated, individual private sector collaborations, this Article envisions public sector municipal collaborations as forming around common challenges, regardless of geographic location. This Article proposes that non-place based municipal collaborations, the theoretical framework of which is not explored in the literature, allow for a reconceptualization of existing local government authority. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments.

The objective of this Article is not to suggest one local government strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing how local governments confront multi-jurisdictional issues, this Article asserts that some issues are best addressed through collaboration among local governments.

Cite as: Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 Harv. Envtl. L. Rev. 445 (2012).

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Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause

By Blake Hudson

Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeals have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable — key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized commons resources,” as fundamentally meeting the third test for determining the validity of federal legislation under the Commerce Clause — the “substantial effects” test. Using commons analysis to meet the substantial effects test has the potential to provide a unified theory of federal environmental regulatory authority under the Commerce Clause, a clearer statement of the jurisprudential approach in environmental cases, and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also assists in answering persistent questions arising in Commerce Clause cases, including when the “aggregation principle” may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and what the proper scope of federal Commerce Clause authority is given constitutional federalism limitations.

Cite as: Blake Hudson, Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause, 35 Harv. Envtl. L. Rev. 375 (2011).

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Expanding Regional Renewable Governance

By Hannah Wiseman

Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a potential site for a utility-scale development is identified, a new piece of property, which I call a “renewable parcel,” is superimposed upon existing boundaries and jurisdictional lines. The entities within the parcel all possess rights to exclude, and this creates a tragedy with anticommons and regulatory commons elements, which hinder renewable development.

In a renewable parcel, numerous rights of exclusion in the form of fee simple ownership, leasing rights, use rights, and regulation make use of a renewable parcel difficult and create anticommons-type problems. The multiple jurisdictions that may underlie the parcel also lead to a regulatory commons, wherein no one government is sufficiently incentivized to create a workable governance regime.

This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address these barriers to renewable development, and it analyzes elements of existing regional institutions to begin to suggest the ideal structure of this agency. Once formed, the regional framework
should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.

Cite as: Hannah Wiseman, Expanding Regional Renewable Governance, 35 Harv. Envtl. L. Rev. 477 (2011).

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