One of the primary problems with land conservation and use aside from the issue of sustainability, is that we as humans have established a culture that is prone to abusing the land we live on. We have tried to heal the environment using the new “Green” movement which is designed to have individuals change their behaviors and then as a result, the collective actions of our society will be environmentally beneficial. However, this method has not produced the effects it was designed for. Individual actions have not changed much and neither has public perception to the problem at hand. This is reflected in the way our economy functions, the way we consume goods and dispose of them, and the expectations placed upon us by the government that we have elected.
In fact in the course of property law, one of the most important aspects is that of exclusion in that when we deem ourselves owners of a certain tract of land or piece of property, we may keep others off and hold that area of the earth as solely our own. As a corollary to this, people have developed the idea that when we own our property, then we have the freedom to do whatever we so choose to it. However, this creates a seemingly butterfly effect in that the adverse use of one parcel of property may create ripples down the chain and end up with a larger effect elsewhere. Our country is losing 6,000 acres of open space every day and 100,000 acres of wetlands every year. We should not place all the blame on our government though. This abuse of property rights stems from the way our economy and market is set up. The focus on profits and free trade inherently has side effects which results in inefficient and environmentally harmful property and individual rights. These habits that contribute to how our economy and market operate are deeply ingrained in our daily lifestyles.
Capitalism and Land Laws
The United States of America is a country that is heavily based on capitalism. Our individual mindsets, our local economics, our government all contribute to trying to make the exercise of our capitalistic beliefs and efforts more efficient. Along with this, we stress the legal system in privatizing goods so as to maximize the incentives for development. However, the drawback to this system is that people are unmonitored when they abuse these rights.
As a society, we have long believed that economically, the free market is capable of resolving all problems because in the end, whoever values certain things the most will end up receiving them. However, this concept or approach cannot be fitted to apply in the realm of environmental conservation. Professor Freyfogle has argued that it is wrong to compensate land and property owners properly act in an environmental sense, because this is inherent in their responsibility as owners of land. We should use the common law and furthermore, the common good system to govern the property ownership system at hand.
Tragedy of the Commons and Enlightenment
We must overcome the tragedy of the commons which is “essentially the situation in which multiple individuals, acting independently, and solely and rationally consulting their own self-interest, will ultimately deplete a shared limited resource even when it is clear that it is not in anyone’s long-term interest for this to happen.”
One may wonder how we can resolve this problem. First I will explain the situation at hand. In absence of enlightened self-interest, governmental intervention is needed to resolve the collective action problem at hand. It’s almost a situation in which children cannot do what is best for them and need an adult to step in and guide them in their actions. Governmental regulations can affect macroeconomics in that they can limit the amount of a common good (in our case, land utility) available for use by any individual. Currently existing government permit systems that limit activities such as fishing, hunting, livestock raising are examples of this approach. Similarly, limits to pollution which may come in the form of pollution/emissions credits are examples of governmental intervention on behalf of the commons. Property rights can effectively ameliorate the problems related to the tragedy of the commons when the rights result in the effective internalization of the cost of over harvesting. However the current state of property law promotes a sense of unbridled freedom in ownership and the property rights are in fact harmful when they reinforce a sense of entitlement to an unlimited harvest. In effect, this causes the owners and resource users to reject any suggest that their usage should be reduced.
Coase theorem, Adam Smith, and Economics
As someone who has an undergraduate degree in Economics, I understand the true impact that the market and economics have on the environment. In economics, there is a very powerful theorem that applies to the world. This theorem describes the economic efficiency of a certain outcome in the presence of externalities. The theorem basically explains that when trade in the presence of an externality is possible and there are no transaction costs, bargaining will lead to an efficient outcome regardless of the initial allocation of property rights. Ultimately, Coase would conclude that if transaction costs were zero, initial allocations of property rights are irrelevant because they don’t affect the final determination of property rights. A Coasean solution would be to have the parties negotiate by themselves a deal in which both would benefit with fewer costs than litigation. However one of the problems with this theorem is that it disregards the environment as a valid externality. Another issue is that economics assumes that trade always takes place between individuals that are both somewhat capable of evaluating and pursuing their own self-interest. However, this is not always a valid assumption. Basic economics premises ignore the fact that in the present day society, there exists an inherently unequal distribution of power. For example, large corporations in the United States are capable of controlling economic and trade conditions with smaller players in the country. If we cannot expect corporations to play fair even in the world of business, then how can we expect them to abide by nature’s calling?
Even laws designed for corporations stress the concept of shareholder wealth. The large movers and shakers in our economy focus mainly on profit and ignore any environmental side effects. This is partially in fact due to prevalence of belief in the free market and application of the Coase theorem. Currently, the free market works in a way that promotes self interests and greed. The structure promotes greed in that prices will stay low and quality high when people are more interested in their own bottom dollar and interests. While this may function from a purely economic point of view, this system sacrifices our environmental integrity for the sake of profit. Producers in our economy primarily and only want to maximize their own profits and in turn inevitably causes collateral damage along the way.
We as humans need to realize a few things. First, we are a part of nature and not above it. As a result, we have to understand that we are individuals as a part of a whole. In order to avoid the tragedy of the commons, society has to begin to change in the direction of sacrificing individual rights and enjoyment for the greater good.
Second, we have to change the way our market functions. This can be done through two avenues. Either we can change the market through legislation and politics, or through grassroots movements beginning with individual actions. The fundamental economic concepts that are deeply ingrained in our current market are based on fallible assumptions that do not ring true when the environment is concerned.
 What is Going Green?, US Chamber of Commerce, 2010, available at http://www.uschambersmallbusinessnation.com/toolkits/guide/P15_1001 .
 Graves, Richard, The Climate Crisis: A Case Study of Adaptation, Mitigation, and Transformational Politics, 2006, available at http://www.macalester.edu/~rgraves/citizen%20science/index.htm .
 Mike Tidwell, The Failure of the Green Movement, The Washington Post, Dec. 2009.
 Eric Freyfogle, The Land We Share, Island Press, 179-181, 2003
 Gustave Speth, Environmental Failure: A Case for a New Green Politics, Oct. 2008.
 Herman E. Daly, The Perils of Free Trade, Scientific American, Nov. 1993.
 Freyfogle, supra note at 5.
 Garrett Hardin, The Tragedy of the Commons, 162 Science 3859, at 1243-1248, Dec. 13, 1968.
 Patrick Frierson, Applying Adam Smith: A Step towards Smithian Environmental Virtue Ethics, (1999), available at http://people.whitman.edu/~frierspr/smith1.htm .
 Robin Hahnel, Economic Justice and Democracy: From Competition to Cooperation (2005), available at http://www.akpress.com/2005/items/economicjusticeanddemocracy .
 John Gowdy, Ecological Economics at a Crossroads, Science Direct, Mar. 2005.
 Daly, supra note at 8.
 Gavin Kennedy, Smith Had Nothing to Say on CSR- for or against!, 2006, available at http://adamsmithslostlegacy.blogspot.com/2006/09/smith-had-nothing-to-say-on-csr-for-or.html .