Reported by Alice Trimmer.

As the summer winds down, we have all doubtless been reminded of the beauty of nature, whether it is through a hike in the mountains, a cool dip in a lake, or watching the late afternoon sun shining through the trees in a city park. We are all also doubtless concerned that future generations will be able to enjoy such simple pleasures for many years to come. Of the many aspects to the very large and complex topic of environmental protection, one that perhaps we do not often think about is the question of ownership of and responsibility for water, forests, and fisheries. We invited G. Tracy Mehan, III, Executive Director of Government Affairs for the American Waterworks Association, to share with us some of the ethical and legal complexities of this question in his talk at Murray Hill Institute on February 19, 2016, entitled "Who Owns the Environment?”  

Mehan began by laying out two contrasting principles, the universal destination of goods on the one hand and the right to private property on the other. The common good of society requires respect for both of these principles. He posed the questions: “Can we, should we recognize property rights in it or to it [the environment]? And what benefit can be derived from doing so, not just of the individual who holds the right, but for the environment, the ecosystem, or the commons?” He pointed out that the theoretical or philosophical challenges of harmonizing the universal destination of all goods with private property have preoccupied philosophers for millennia.

Nonetheless, “The environmental or ecological issues [that we now face] represent a more perplexing problem because of the genuine challenges of protecting, while benefiting from, the earth’s resources and beauty. The project of designing or defining a property rights regime, relative to the commons, is of recent vintage.” Mehan quoted scholars Henry N. Butler and Christopher R. Drahozal on this issue: “Because of the common ownership of these resources [e.g. water and air], no one has adequate legal rights to protect against them.” He pointed out that without well-defined property rights, regulation, or some communal management arrangement, each person has an incentive to exploit the resource he or she has access to. Furthermore, without a property interest, a person “has no incentive to improve the economic productivity of a piece of land if they do not own it, by the same token, a natural resource is unlikely to be cared for if there is no property interest.” In other words, people tend not to care for things that they do not own. Mehan described several situations in which unclear or defective property titles have impeded private economic growth as well as development of sustainable resources such as forests and fisheries.  

Drawing on the ideas of the philosophers Aristotle, Cicero, and John Locke, Mehan concluded that “Discerning and establishing the respective rights, prerogatives, and responsibilities of the common and private spheres demands prudence, an essential virtue, necessary to effectuate appropriate governance and optimize human freedom and prosperity. The aim is to harmonize environmental and ecological values and the rights of property.”  

Initiatives such as the land trust movement in the United States, which gave rise to nongovernmental institutions such as The Nature Conservancy, aim to actively protect the environment and natural resources. This type of movement relies on free market transactions between consenting parties. The Nature Conservancy acquires land by buying it and also works with local communities to protect biodiversity, water quality, and wildlife in partnership with private and public entities.

Mehan pointed out that no matter how carefully we craft the new approaches, we must accept that we do not know what works all the time, every time. It is necessary to balance freedom, cost-effectiveness, and environmental protection, and we can never guarantee that property owners will behave in the way we might deem optimal. Conservation or ecological values are not inherent in the functioning of the market, hence a person has to bring those values to the marketplace, having learned them from some other source. Strong ethical supports are needed to preserve both market and competition from degeneration. This is especially important as it affects common pool resources such as rain, water, and fisheries.

Mehan concluded “Without something like a conservation or land ethic, a sacramental regard for creation, a concern for future generations beyond one’s short life span on this planet, or some other moral and ethical North Star to guide and motivate citizens, farmers, ranchers, woodlot owners, and other actors, I am not optimistic that we can succeed on the basis of free-market principles only. There will always be a real need for reasonable regulations.” Purely economic drivers have their limits, hence family tradition, culture, and other motives can play an important part in how landowners make decisions about the use of their land and other resources.