Monday, August 30, 2010
PUBLICATION: Commerce in the Commons: A New Conception of Environmental and Natural Resource Regulation Under the Commerce Clause
For those interested in the U.S. Supreme Court's treatment of the commons, a new paper to be published in the Harvard Environmental Law Review applies Elinor Ostrom's "appropriation" analysis to resources present on privately owned lands to conclude that such "privatized commons resources" meet established Commerce Clause tests for determining the validity of federal environmental legislation in the U.S., noting that “the Court has consistently upheld federal authority to regulate zero-sum, finite resources over which rivalry of use takes place – the key characteristics of a commons.”
Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes the Supreme Court’s major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a surprisingly consistent theme emerges: the Court has consistently upheld federal authority to regulate zero-sum, finite resources over which rivalry of use takes place – the key characteristics of a commons. The Court’s Commerce Clause jurisprudence can be interpreted as treating these “privatized commons resources” as necessarily meeting the third test for determining the validity of federal legislation under the Commerce Clause – the “substantial effects” test. Recognizing the use of commons analysis to meet the substantial effects test is an important step, as it provides security about the continued protection of valuable natural resources, a clearer statement of the Court’s approach in environmental cases and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also answers persistent questions arising in Commerce Clause cases, including when the aggregation principle may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and the proper scope of federal Commerce Clause authority given constitutional federalism requirements.
A working draft of the article is available here.