Local property, global justice

February 12, 2009Duke Law News

Feb. 12, 2009 — Leading environmental law and policy scholars explored the implications of property-based solutions to environmental problems during a Duke Law symposium Jan. 30. Law faculty were joined by colleagues from Duke’s Nicholas School of the Environment and other international scholars at the event sponsored by the Center for International and Comparative Law and the Duke Journal of Comparative and International Law (DJCIL). » View symposium webcasts

In his opening remarks, Dean David Levi highlighted the gravity of the subjects the panelists would discuss, such as the regulation of greenhouse gases, and management of forest and water resources.

“It’s a young century but it seems fair to say that the issues you are about to look at are among the most important issues of this century, and probably will be with us for a good deal longer than that,” he said.

Experts from the U.S., Brazil, and Nigeria weighed in on the role of regulation and ownership in addressing environmental problems, and talked about attempts to create an international framework for solving them.

Jonathan Wiener, Duke’s Perkins Professor of Law, Professor of Environmental Policy, and Professor of Public Policy Studies, talked about the difficulty of regulating greenhouse gas emissions on a global scale. “We are currently suffering a tragedy of the climate commons,” he said. “Emissions of greenhouse gases pose external harms. Emissions anywhere on the planet mix globally in the atmosphere and cause global impacts, although those impacts vary regionally and locally. The abatement of those emissions is costly to the actors who would undertake that abatement, so there is an incentive to continue emitting and let those emissions cause harm to others. …The fundamental question, as in any tragedy of open access resource problem, is how to restrict access.”

Wiener suggested that a cap-and-trade regulatory system would likely entice more countries to join an international agreement than would a tax on emissions. “The real issue, the real distinction, between taxes and cap and trade … is engaging political participation by the actors who would have to adopt and implement this regulatory system,” he said.

Panelist Annie Petsonk, international counsel with the Environmental Defense Fund, said that the World Trade Organization (WTO) could provide a suitable structure for a binding international agreement on greenhouse gas emissions.

“Countries are pounding on the doors of the WTO to get in,” she said. “Why? Because, in exchange for accepting a set of international responsibilities … they gain access to markets. That’s what countries want, that’s what their people want.”

Reflecting on the move to protect U.S. forests in the early part of the 20th century, Professor Jedediah Purdy identified a conceptual shift regarding their purpose and place in American life.

“A new idea developed of what forests were good for that went beyond the simple instrumental economic value of getting timber, and also went beyond the somewhat more complex externalities-managing concerns of federal retention and expert management,” Purdy explained. “They came to be associated with the civic ideal of creating permanent, common, public space, where people could come together across classes and religious divisions and develop a common idea of themselves as Americans.”

Solutions to current environmental problems will require a similar shift in domestic and transnational political culture, he added. “[T]hat creates the political will for states to commit to economic sacrifices, sacrifices of convenience, the political costs of transitions.”

DJCIL symposium editor Rachel Muchmore ’09 said the day’s discussion and papers written for the issue represented a significant contribution to the subject.

“Consideration of property rights will be integral to making fair and lasting solutions to the problem of global climate change,” she said.