Natural Resources, Congestion, and the Feminist Future: Aspects of Frischmann's Theory of Infrastructure Resources

Poirier, Marc R.
May 2008
Ecology Law Quarterly;2008, Vol. 35 Issue 2, p179
Academic Journal
Brett Frischmann's 2005 Economic Theory of Infrastructure argues that certain important resources should be governed not by a property regime but by a regime that incorporates open, nondiscriminatory access. His theory works well for information and the Internet, as well as for some aspects of antitrust, and has received a warm reception by scholars in these fields. It is not as apt for natural resources and environmental services. Unlike information, most natural resources are congestible. Managing congestible resources requires more than a principle of nondiscriminatory access, and must account for negative externalities, in a complex and resource-specific analysis. In the Essay published in this volume, Frischmann's theory has been refined to account for environmental infrastructure in more detail; the principle of open, nondiscriminatory access gradually recedes behind the complex considerations of managing competing uses of each resource. The original kernel of Frischmann's theory remains helpful in some other ways, however. By stressing the pervasive uncertainty of downstream benefits from the use and reuse of information, Frischmann's theory suggests that the environmentalists' project to quantify the value of ecosystem services and create markets in ecosystem services cannot be applied to information, as some advocates of cultural environmentalism appear to assert. At the same time, Frischmann's focus on the importance of making vital renewable resources available to downstream users, including users in subsequent generations, corresponds in a perhaps surprising way to feminist and communitarian theories of interpersonal obligations about sharing resources. Frischmann's theory may therefore help to lay the groundwork for a feminist analysis of intergenerational environmental obligations.


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