A Window into the Regulated Commons: The Takings Clause, Investment Security, and Sustainability

Eagle, Josh
May 2007
Ecology Law Quarterly;2007, Vol. 34 Issue 2, p619
Academic Journal
The holding of the U.S. Court of Appeals for the Federal Circuit in American Pelagic Fishing Co. v. United States points to the conclusion that the government will almost never be liable, under the Takings Clause, when fisheries regulations reduce the value of commercial fishing permits, vessels, or gear. From the perspective of natural resource economics, this is a healthy result. Economists suggest that solving commons problems requires that natural resources be under the complete control of a sole owner who makes self-interested decisions about resource use, and if the Fifth Amendment required the government owner to compensate fishermen when it tightened regulations, it would hamper the government's ability to regulate optimally. One problem with the economic theory of commons solution, however, is that it does not distinguish between sole private ownership and sole government ownership in terms of their application. In this Article, I argue that government ownership is fraught with problems that do not occur in the private ownership context. To the extent that government resource owners rely on entrepreneurs to capture and sell natural resources, the government must play two roles: regulator and facilitator. These roles frequently come into conflict, inevitably compromising the effectiveness of regulation. Furthermore, entrepreneurs have incentives to lobby against long-term conservation. The poor condition of United States fisheries is proof that these two problems--government's dual role and fishermen's lobbying--are preventing the Magnuson-Stevens Fishery Conservation and Management Act from achieving its goal of sustainable fisheries. Until the Act is changed to rescue both fishermen's incentive to lobby against conservation and the likelihood that regulators will accede to their demands, it will probably not succeed.


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