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Sackett v. EPA and the Due Process Deficit in Environmental Law

Last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected the EPA’s effort to deny private landowners an opportunity to challenge the agency’s assertion of jurisdiction over their land. The Sacketts wanted to build a home in a subdivision, but the EPA concluded the Sacketts’ land to contain jurisdictional wetlands under the Clean Water Act and issued an order requiring the Sacketts to cease construction of their home and undertake specified restoration efforts. Failure to comply with the order was itself punishable with substantial fines, in addition to any for violating the CWA. The Sacketts sought judicial review of the order, on both statutory and constitutional grounds, to no avail in the lower courts. They prevailed in the Supreme Court, however, completely on statutory grounds, leaving the due process questions to another day.

The Court based its decision on the Administrative Procedure Act’s presumption in favor of judicial review of final agency actions and the CWA’s failure to expressly preclude such review. But what if the CWA had precluded review? Would the Sacketts have been entitled to judicial review under the Due Process Clause? And more broadly, given the uncertainty surrounding the scope of federal wetland regulation, and the lack of fully enforceable jurisdictional regulations, does current CWA enforcement more generally comport with the principles of due process? I explore some of these questions in a forthcoming article in the Cato Supreme Court Review“Wetlands, Property Rights, and the Due Process Deficit in Environmental Law.” The abstract is below.

In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands are covered, under what authority, or with what effect. As a consequence, federal wetlands regulations, as currently practiced, violates important due process principles.

Cross-posted at The Volokh Conspiracy.

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Q&A with Dean Lueck on Wildfire Policy and Suppression

This week’s installment in our Q&A series hits close to home. As we write, a 10,000-acre wildfire burns less than twenty miles from our office in Bozeman, Montana, a humbling reminder of the reality of large and destructive wildfires in the west.

Dean Lueck knows wildfires better than most. Before becoming an economist he was a smokejumper with the U.S. Forest Service in McCall, Idaho. Recently, Lueck combined his hands-on experience fighting fires with his impressive academic career studying property rights and natural resource economics. The result was Wildfire Policy: Law and Economics Perspectives, a volume he co-edited with Karen Bradshaw. This summer, Lueck is continuing his research on wildfire policy at PERC, along with Jonathan Yoder, as a 2012 PERC Lone Mountain Fellow.

Q: Can you highlight a few examples of major wildfires and what efforts were taken toward suppression?

A: First, there is the famous 1910 “Big Burn” in northern Idaho and western Montana. That fire, or actually a collection of fires, burned about 3 million acres, killed over 80 people, and devastated the town of Wallace, Idaho. It was fought in a disorganized manner by unskilled firefighters including convicts, vagrants, U.S. Army soldiers, timber land owners with only hand tools. Because the fire took place predominantly on national forest lands, it led to dramatic changes in federal fire policy. Also during the period between 1880-1920, there were many fires as large or larger than the Great 1910 Burn. Many of these took place in the northeast and the Great Lakes region where private timber land dominated.

In general organized wildfire suppression efforts were very limited prior to 1900 and efforts focused primarily on protecting homes, buildings, and towns, but not on putting out the fire itself. By the late 20th century fire suppression had become organized within a large centralized, coordinated and hierarchical system heavily dominated by the U.S. Forest Service. Crews had become specialized and highly mobile. The use of aircraft in transport and direct suppression with water and retardant had become routine.

More recently, the Biscuit Fire in Oregon burned nearly a half a million acres in 2002. It began on July 13, and at its zenith on July 31 there were over 2,000 firefighting personnel, 21 helicopters and 40 bulldozers assigned to the fire. The fire was not completely suppressed until December and cost more than $150 million. The fire destroyed four homes and ten other structures, forced the evacuation of 15,000 people, and destroyed or damaged thousands of acres of valuable timber. No one was killed during the suppression effort.

By contrast consider the Black Dragon Fire in 1987, which burned 18 million acres along the Amur River, which is the border between China and Russia. The fire started in China and burned 3 million acres there. The Chinese fielded over 60,000 unskilled fire fighters and hundreds died. The Russians did essentially nothing to suppress the fire, and it grew an additional 15 million acres. The disparate approaches resulted from a lack of cooperation between Russia and China and extreme differences in the relative value of timber in the two countries.

Since 1999 there have been 134 fires of more than 100,000 acres in the United States. For the last 10 years, average annual federal suppression expenditures have been over $1 billion.

Q: What does your project (with Jonathan Yoder) seek to add to the economics of wildfire policy?

A: The main goal of our project is to gain an economic understanding of the organization of wildfire suppression. Fire suppression organization today seems complex, administratively cumbersome, and often inefficient. We want to understand the causes and consequences of the current system both theoretically and empirically. We want to understand the economic foundations that have driven how fire suppression institutions developed into those that we see today, and understand how they vary across environmental, demographic, and political jurisdictions. We will then have a better foundation for understanding where inefficiencies lie, and how suppression institutions might be improved.

So, for example, we are examining the emergence of wildfire suppression among timber landowners in the northwestern and northeastern United States during the late 1800s. These private organizations pre-date the Forest Service fire crews, and this type of timberland owner association, to our knowledge, is pre-dated only by urban firefighting organizations. The federal government’s involvement in fire suppression emerged with the accumulation of federal forest lands and even stimulated expansion of the national forest system.

Q: What are some of the criticisms of modern wildfire institutions? Do the resource values justify the suppression costs?

A: Many critical observers feel there is an excessive amount of suppression and too little fuel management or prescribed burning, especially on federal lands. There is also the concern that suppression costs may often outweigh benefits (damage reduction). We certainly know of specific cases in which suppression costs exceeded the resource value at risk. There is also a concern that suppression effectiveness is often low so that suppression expenditures have little payoff. At the same time there is strong political pressure to put out all fires so there has been a recent reversion back to the so-called “10am rule” in which fire crews and land managers are directed to put all effort into suppression even where suppression costs would be high relative to potential damages. The long-term effects of continued fire suppression are also likely to lead to fuel buildups that can result in larger, more devastating fires in the future.  [Read more…]

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The Adaptability of Property Rights

by Andy Hanssen, PERC Lone Mountain Fellow

What Naomi Lamoreaux has termed “The Mystery of Property Rights” has two aspects. On the one hand, secure and stable property rights are essential to economic development and growth. On the other hand, a set of property rules that cannot evolve in the face of technological and social change may be unable to adapt in ways that facilitate progress.

In this context, consider the United States. The United States is an economically successful country with well-respected enforcement of property rights – so much so that it serves as a destination for capital fleeing less stable regimes. Yet the United States also has a record of making abrupt alterations to property rights (creating losers as well as winners) in the face of new technologies and/or the availability of new resources.

When a parcel of land is taken via eminent domain for a “public use,” its owners are entitled to “just compensation.” These two requirements (public use and just compensation) are written into the U.S. federal constitution and the constitutions of most states, and ostensibly check the ability of governments to take private property. In fact, each requirement has proven sufficiently malleable so as to allow a broad range of takings. Although debates over the proper definition of public use have generated controversy, unhappiness with how just compensation is determined has also sparked much concern. That unhappiness became particularly pronounced in the 19th century when a practice known as the benefit offset was employed (see Fleck and Hanssen 2010).

The idea behind the benefit offset is simple: If an owner has land taken for a public use via eminent domain and the value of the remaining land rises as a result, the taker can “offset” required compensation by that rise in value. For example, assume a farmer loses 10 of his 100 acres to a railroad, the pre-railroad price of farmland is $100 per acre, and the price rises to $105 per acre when the railroad lays its line. The farmer is due compensation equal to $1000 (10 x $100) for taken land, less $450 (90 x $5) for the increase in the value of the remaining land, summing to a net payment of $550.

The benefit offset was one of several “expediting doctrines” used to promote public infrastructure projects – highways and canals – in the early 19th century. The “expediting” was justified by the alleged importance of the projects to the general public.

The benefit offset was also used to subsidize railroad building. Why subsidize railroads, and if doing so, why use the benefit offset?

Various explanations for a subsidy are possible, but holdup problems were likely to have been of concern. Infrastructure projects entail large sunk investments, with returns generated over a period of years. Nonetheless, the benefit offset seems a roundabout form of dealing with a holdup problem. One possible explanation is that the benefit offset enhances the incentive to choose the most valuable route (in terms of willingness of shippers to pay).

Rail rates (as with rates for canals or highways) were regulated, which may have prevented companies from capturing the full value of a line through pricing (this would be a form of holdup). As a result, a rail company will choose the cost-minimizing route, which may not be the value-maximizing route as landowners are concerned. The benefit offset may have helped overcome this problem.

As Lone Mountain Fellows at PERC this summer, Robert Fleck and I are taking a closer look at this issue. By examining how the benefit offset was used and when it changed in different states, we highlight factors that underline the adaptability of property rules—but which don’t threaten the security promised by the property regime.

 Andy Hanssen is a 2012 PERC Lone Mountain Fellow and an associate professor of economics at Clemson University. He is the co-author, along with Robert Fleck, of the 2007 PERC Policy SeriesDo Profits Promote Pollution? The Myth of the Environmental Race to the Bottom.”

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Could the Health Care Decision Hobble the Clean Air Act?

Sackett v. EPA was the big environmental case from this past Supreme Court term, but the Court’s decision in NFIB v. Sebelius, the health care case, could actually turn out to have the larger effect on environmental law.  While most commentators on NFIB focused on the Commerce Clause challenge to the individual mandate, the arguments against the health care reform law’s provisions expanding Medicaid turned out to be more consequential, as seven justices concluded that in trying to create incentives for states to expand Medicaid, the health care reform law went too far.  This aspect of the Court’s ruling could also have a significant impact on environmental law.

As part of the Patient Protection and Affordable Care Act, Congress sought to expand Medicaid to cover all adults at or below 133 percent of the poverty line.  As states are tasked with implementing Medicaid, Congress had to make it worth their while.  So in addition to offering generous funding (at least in the beginning), the PPACA also threatened to cut off all Medicaid funding to any state that did not go along with the expansion.  In effect, Congress made the states an offer they couldn’t refused, which is one reason over twenty states sued.

In NFIB a majority of the Supreme Court found Congress’ offer to be unconstitutional.  Congress’ use of conditional spending, seven justices concluded, crossed the line from inducement to coercion, and was constitutionally impermissible.  In the process, the Court reaffirmed that the Constitution creates a federal government of limited and enumerated powers, and that the federal government’s spending power is subject to judicially enforceable limits.

The NFIB ruling matters for environmental law because conditional spending is a staple of modern environmental law.  Most of the major federal environmental statutes adopt a “cooperative federalism” model under which states are encouraged to implement federal environmental programs.  State cooperation is encouraged through, among other things, the promise of federal financial support and, in some cases, the threat to withhold money for other programs. Under the Clean Air Act, for example, states that fail to adopt federally approved air pollution control programs risk losing federal highway funding.  This condition, combined with the threat of direct federal regulation, has been largely successful at inducing state acquiescence.  Yet after the Supreme Court’s NFIB decision, this arrangement may be unconstitutional.

The Clean Air Act would appear potentially vulnerable on several grounds.  First, the Clean Air Act conditions the receipt of money for one program (highway construction) on compliance with conditions tied to a separate program (air pollution control).  This may be problematic because a majority of the Court thought Congress was trying to leverage state reliance on funding for one program (traditional Medicaid) to induce participation in another program (the Medicaid expansion).  While the money at stake under the Clean Air Act is far less – most states receive substantially less in highway funds than in Medicaid funds – highway funding is less directly related to air pollution control (particularly from stationary sources) than traditional Medicaid is to the Medicaid expansion.

Though highway funding is less than that for Medicaid, it still may be enough to raise constitutional concerns. Highway funds are raised from a dedicated revenue source in gasoline taxes and placed in the Highway Trust Fund.  For many states, federal highway funds represent the lion’s share of their transportation budget.  As a consequence, threatening to take highway funds may strike some courts as unduly coercive under NFIB.  In the 1980s the Supreme Court upheld conditioning five percent of a state’s highway funds on setting a 21-years-old drinking age.  Under the Clean Air Act, however, a state can lose all highway funds, save those that will reduce emissions or are necessary for traffic safety, for failure to adopt a complete pollution control plan that satisfies the federal EPA.

The Court in NFIB also stressed that conditional grants of federal funds operate much like a contract, and that the parties are limited in their ability to unilaterally revise the terms.  This could expose another vulnerability in the Clean Air Act because while the statutory requirements don’t regularly change, what states must actually do to comply with the Clean Air Act’s terms do. The requirements for state pollution control plans are constantly changing, as the EPA tightens or otherwise revises federal air quality standards and additional pollutants become subject to Clean Air Act regulation.  Were this not enough, the recent inclusion of greenhouse gases as pollutants subject to regulation under the Act has radically altered states’ obligations, such that states will now have to do many things they could not have anticipated when the Clean Air Act was last revised in 1990.

Many states are already chafing under the Clean Air Act’s requirements.  The NFIB decision may give them a tool to relieve the burden.  Specifically, the Court’s decision to limit the federal government’s authority to place conditions on the receipt of federal funds may offer states some relief from Clean Air Act requirements.

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Whose Fracking Rights?

Denis and Barbara Prager fear the day that hydraulic fracturing takes place on their land in the Shields Valley of Montana. The threat of ‘fracking’ is real and there is nothing they can do. While the Prager’s own the surface rights to their property, the state owns the subsurface and mineral rights. The state has the right to use the land as is ‘reasonably necessary’ for drilling or can lease the mineral rights to a private company. Those rights are presently open for bid.

Hundreds of millions of acres of property across the nation have secure property rights that are split; different entities own the surface and subsurface rights. Battles over split estate rights emphasize the importance of well specified and defined rights. Perhaps most important is the knowledge of what rights the surface owner does and does not have.

Under split estate rules, subsurface owners have the right to use surface land as is ‘reasonably necessary’ to develop subsurface assets. Private oil and gas companies often lease rights from subsurface owners regardless of whether the estate is split or under single ownership. Either way, drilling and extraction companies are responsible for unnecessary harm done, impacting water quality, for example.

Though hydraulic fracturing has been going on for more than 60 years, it has gained recent attention due to its affordability in the current global economic and technological climate. It is interesting that while many environmentalists vie to decrease carbon emissions, they are also opposed to fracking. In truth, natural gas may be one of the greatest boons to keep America energized at low cost with fewer emissions. Given secure property rights and market transparency it can be environmentally friendly, to boot.

Cross-posted at Environmental Trends.

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A Life’s Work That Will Last Forever

The physical world lost a great scholar last week with the passing of Elinor Ostrom, a 2009 Nobel Laureate. Ostrom left us with scholarly works that brought economic and property rights theory into the field. Why do we see the tragedy of the commons? When do we see it? And why, in some common resource pools, is it non-existent?

Ostrom’s work helped to organize many pieces of the environmental management puzzle. She demonstrated in various places across the globe that the tragedy is not necessary for common pool resources (CPRs) but is likely when at least informal rules do not exist.

There is no single solution to motivate long term environmental stewardship. In her 1990 book, Governing the Commons: The Evolution of Institutions for Collective ActionOstrom notes that “[n]either the state nor the market is universally successful in enabling individuals to sustain long-term, productive use of natural resource systems.” Each CPR is much more particular. There is, however, a common framework to help understand why some CPRs are managed for long-term productive use while others are not. Cumulating the evidence and bringing these factors into view was one of Ostrom’s great contributions.

Examining multiple CPRs across the globe, Ostrom and associates designed a set of principles that helped predict resource stability. Provided these rights, at least informally, the CPR is more likely to be well stewarded.

  • Clearly defined boundaries and effective exclusion of un-entitled parties;
  • Locally adapted rules for transfer;
  • Collective decision making that includes resource stakeholders;
  • Accountable (even stakeholder) monitors;
  • Enforcement that assesses appropriate sanctions for resource violations;
  • Low cost mechanisms for conflict resolution;
  • Recognition of community rights by higher levels of governance;

I think of CPRs managed under these rights as managed commons. They have property rights, formal or informal, that provide the necessary incentives to steward and invest in the resource.

Elinor Ostrom will be greatly missed. Her spirit and great contributions to economics and the social sciences will forever remain with us. She has organized ideas about CPRs in a manner that will help increase consistency of future research. She has created a great platform of understanding from which much research will continue to flourish.

Cross-posted at Environmental Trends.

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Guest Blogging on Environmental Policy for The Atlantic

For the past ten days PERC’s Jonathan Adler been one of the guest bloggers on Megan McArdle’s blog on The Atlantic‘s website. During this time he has written five posts on environmental policy:

– Property Rights and the Tragedy of the Commons

– Property Rights and Fishery Conservation

– How Property Rights Could Help Save the Environment

– Is Washington, D.C., Really the Environment’s Savior?

– A Conservative’s Approach to Combating Climate Change

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Access Unlimited, Trout Limited

Image by Angus Mackie/Creative Commons via flickr

The May issue of Outdoor Life carried an article entitled “Can I Fish This Stream?” It included a map of the U.S. showing 45 states with “limited stream access,” 4 with “pending access litigation,” and 1 with “liberal stream access.” The one was Montana, about which the article’s author opined, “Anglers in other states should be so fortunate.” Not so fast.

Since the original stream access cases in the early 1980s, landowners have claimed that the court and the legislature took property rights without compensation. Not surprisingly, the conflict has torn the social fabric of landowner-sportsman relations in Montana.

What the author failed to note was the unintended consequences of Montana’s law, namely landowners who cannot prevent access have less incentive to preserve habitat. The now infamous Mitchell Slough case in southwest Montana illustrates what can happen. When anglers took the right to control access from landowners and created public access to the reclaimed irrigation ditch paid for by landowner dollars, owners rightfully shut off the flow leaving fish high and dry. Not only did this reduce spawning habitat for trout that previously migrated freely into the Bitterroot River over which public access has never been questioned, it reduced the incentive of other landowners to invest in such reclamation projects.

The Outdoor Life article concludes that “although Montanans were able to ward off impingement of their access rights last fall, it’s not likely that the assaults on stream and river accessibility are over.” Proponents of unlimited access fail to recognize that their assault on landowner rights is also an assault on trout habitat.

Access unlimited, yes; trout unlimited, no.

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Trading Sheep for Grass and Fish in Patagonia

The big brown trout I was fishing for yesterday on the Limay River in Patagonia was nowhere to be found but I did manage to come across an old hang out of Butch Cassidy.

Being from Montana, where the Hole-in-the-Wall Gang pulled off their last job—a holdup of a Union Pacific train—before fleeing to South America, I was happy with this historical catch.

Legend has it that Butch became friends with Jarred Jones who ventured down to Argentina from Texas in 1887 to make his fortune. Jones didn’t find gold but he did manage to open a general store at the mouth of the Limay. The old store, which is now a friendly restaurant, still holds the shops books, old photos, and a frontier atmosphere of a century ago.

Jones earned enough money at the store to purchase two big ranches, which he fenced off with barbed wire—the first to be seen around these parts. Today, barbed wire is strung across much of the 98 million hectares of the Patagonian Steppe to enclose vast quantities of sheep.

Unfortunately, a flock of sheep can gobble up great expanses of native grasses, and in southern Argentina, they’re clearing some serious vegetation. In addition to vegetation loss, overgrazing equates to lost habitat for other animals, and damages waterways with runoff and silt from erosion, which affects the fish, which affects tourism.

Paradoxically, sheep—the slayers of grasslands—could become the saviors of the same landscapes and in turn protect fish and other species. It turns out that because the plants of the grasslands co-evolved with herbivores, such as guanacos, a little munching is good (and necessary) for the flora. It is also true that companies that have environmental components to their business plans and seek to create goods from natural products, including merino wool, would like to see grasslands flourish for the long term. And tourists like me who want to fish and recreate in Patagonia would be willing to pay a price premium for this outcome.

Enter The Nature Conservancy, Patagonia, Inc. and Ovis XXI. Armed with scientific knowledge and market tools, this trilogy is working to conserve more than 15 million acres of land in Patagonia by 2016. Ovis XXI works directly with the woolgrowers. These consultants know the industry, and how to raise sheep without destroying grasslands. The Nature Conservancy brings its science-based knowledge and environmental credibility to help build the sustainable grazing standard through planning and subsequent monitoring of conservation outcomes. And Patagonia Inc. brings the market perspective—buying the wool, networking with others in the supply chain, creating the final products, and using its brand strength to help publicize Patagonian wool.

The majority of the land targeted by the Patagonian Grasslands Conservation Project is privately owned, and remains in large and undivided properties of intact native grasslands. Because most landowners face ongoing political and economic challenges that affect their ability to stay in business, an incentive is needed to gain commitment from landowners to manage resources sustainably. In this case, the carrot comes in the form of a payment to ranchers for grazing less sheep and or for using more modern and environmentally friendly grazing practices.

In November 2011, the first shipment of sustainable wool (29 tons) left Patagonia for Asia to be turned into socks for Patagonia, Inc. So far this scheme has worked to place two million acres under sustainable grazing agreements. Time will tell if the environmental protection purchased by conservationists from sheep ranchers will protect grasslands and associated waterways in the future, but signs look promising. Stay tuned…

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New book by PERC researchers: Tapping Water Markets

Now available from RFF Press, Tapping Water Markets explores the past, present, and future of water marketing. Written by PERC Executive Director Terry Anderson and research fellows Brandon Scarborough and Reed Watson, the book provides up-to-date information of where and why water shortages are occurring and where and why markets are emerging to resolve water conflicts.

Unlike other books that portray water wars as an inescapable reality of a crowded planet, Tapping Water Markets proposes institutional reforms aimed at fostering voluntary water exchange, conservation, and cooperation. The book contains case studies from the United States and other parts of the world demonstrating the importance of clearly defined, secure and transferable water rights.

Intended for professional and lay audiences, the book covers a range of topics including surface water allocation, groundwater management, environmental flows, and water quality trading. It concludes with predictions about the future of water scarcity and the ability of water markets to shape that future more positively.

Copies are available direct from the publisher and at Amazon.com.

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Who Owns the Truffula Forest?

The Lorax, a Dr. Seuss classic, is hitting the big screen this weekend. The Lorax is an odd, little character that intrepidly opposes a thneed manufacturing plant (whatever that is!) run by the Oncelor.

Similar to most environmental story plots, this one has a good environmentalist, the Lorax, that holds the moral high ground and a bad, greedy, profit mongering, capitalist, the Oncelor. In this story the Oncelor produces thneeds that appear to be in high demand. During production he clear cuts every last Trufulla tree, smogs the air, and clogs the water. As a result of the Oncelor’s insensitive activities the Brown Bar-ba-loots go hungry for there is no more Truffala fruit, the Swomee Swans can no longer croak a note, and the gills of the Humming Fish have become gummed. All in the name of profit. This, in the end, is also lost because the Oncelor puts himself out of business by extricating every last Truffala tree which are a needed input for thneed production.

In his strategy to garner attention for conservation, Dr. Suess misses the fundamental motivator: incentives. Industry and profit are not necessarily bad and harmful to the environment. Environmental problems are the result of conflicting demands on resources. Given well specified rights, negotiation will motivate the highest valued resource use. If the Truffala forest was open access for anyone to cut, it is possible that the Oncelor and others would race to harvest every last tree. Given ownership, however, the Oncelor is more likely to invest in future trees to ensure the possibility of future production. Weyerhaeuser, for example, is proud to announce that they plant millions of trees every year. They do so not to prove their conservation ethic, rather as an investment in timber for future production.

A bit of green PR doesn’t hurt, either. The list of movie sponsors is a bit surprising, to say the least. As you can imagine, the motivator of many of these sponsors is not just good green ethics as much as good for the bottom line. And that’s OK. If you want to change behavior, change the incentives. Profit is a good motivator. If you want to understand the fundamentals of environmental problems look at the property rights and follow the incentives. Well specified property rights encourage long-term stewardship and ensure accountability. That is the moral of my story.

I have not yet seen “The Lorax” movie but will think about how the storyline may differ given well specified property rights when I do. Indeed, the global trend over several decades has been better property rights, more economic freedoms, and increased prosperity. I do care about the environment, both near and far. And I see things getting better, they really are!

Originally posted at Environmental Trends.

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Valentin Abe is spawning fish farmers in Haiti, lack of formal property rights be damned

by Tate Watkins

“Everything here in Haiti,” says Dr. Valentin Abe, “takes time.” Which is a comment as insightful as it is tautological.

Abe (pronounced AH-bay), originally from Côte d’Ivoire, first came to Haiti in 1997 on a six month contract to assess potential aquaculture sites. He’d recently earned a PhD in aquaculture from Auburn University, and before he knew it the contract spiraled into two years. He’s been working with fish farmers in Haiti ever since.

In 2005, he started Caribbean Harvest, a program that turns terra farmers into aqua farmers using startup aquaculture kits and fingerlings from Abe’s hatchery in Croix-des-Bouquets, in the outskirts of the capital. Potential fish farmers rely mainly on donations to provide startup costs, but the idea is that once a farmer has a kit—two cages, 2,400 fingerlings for each cage, and feed—his operation will sustain itself once the first harvest goes to market. The 150 or so farmers Abe works with have had varying degrees of success so far.

Haiti’s lack of formal property rights—the Hernando de Soto-backed international property rights index doesn’t even bother to include the country—has been cited ad infinitum, especially during the reconstruction tumult since the earthquake two years ago. But Abe and his partner farmers have had surprisingly few property rights-related problems when it comes to the waters that hold their fish.

“In the lakes and reservoirs,” he says, “[farmers] do the monitoring, provide security for the cages themselves. They do all the work.”

The Haitian constitution provides that “water resources are the domain of the state; the right to property does not extend to any springs, rivers, or water courses.” But in practice, informal customary law reigns, and farmers provide their own enforcement.

Land, however, is a different story.

“We’re trying to locate land and go build a processing plant,” says Abe. “The owner of the land, we know that he’s the owner of the land, but he doesn’t have the proper documentation because land has been handed down from generations, from father to son. So they’ve never felt the need to do the paperwork on the land, and we cannot build infrastructure on land that doesn’t have titles.”

Abe plans to build the fish processing plant near Lake Azuéi, Haiti’s largest lake and the site of many of Caribbean Harvest’s farmers. Eventually, he also wants to build fish ponds, a more efficient way to farm. But he faces the same hurdles when it comes to securing proper title for land on which he wants to build ponds. He guesses that it will take six months at best just for all parties to acquire the proper paperwork.

For now, he waits.

Tate Watkins is a freelance writer based in Washington, D.C. He writes about economic development, foreign aid, and immigration, among other things. Currently in Port-au-Prince, Haiti. Visit his website here. Photo via Caribbean Harvest.