Common Boundaries: The Theory and Practice of Environmental Property

By Michael Cox

How do we – and how should we – engage with the natural environment through the concepts of rights and responsibilities? In this book, Michael Cox develops the theory and practice of environmental property rights, moving beyond simplistic assumptions that do not reflect the diversity of arrangements we see in the world. Recognizing this diversity will help us craft better responses to environmental problems in the future with an interdisciplinary foundation in what has worked, or not worked, in the past. Synthesizing a variety of methods and disciplines, Cox explores rights-based environmental policies as well as different cultural approaches to environmental ownership. The result is a book that helps the reader understand the full range of possibilities when it comes to environmental ownership.

• Language: English
• Publisher: Agenda Publishing
• Release date: Feb 22, 2024
• ISBN: 9781788214735

Michael Cox

Michael Cox is a writer of many non-fiction and fiction books for children including titles in the Dead Famous series, Johnny Catbiscuit and How to Drink From a Frog and Wild Things to do with Woodlice for A&C Black.

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Common Boundaries

Common Boundaries

The Theory and Practice of Environmental Property

Michael Cox

For Chris and for Ana

© Michael Cox 2024

This book is copyright under the Berne Convention.

No reproduction without permission.

All rights reserved.

First published in 2024 by Agenda Publishing

Agenda Publishing Limited

PO Box 185

Newcastle upon Tyne

NE20 2DH

www.agendapub.com

ISBN 978-1-78821-471-1

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Typeset by Newgen Publishing UK

Printed and bound in the UK by TJ Books

Contents

Acknowledgements

Introduction

Part I: Collective action and groups

1.The tragedy of the commons

2.Boundaries

3.Kinship, reciprocity and intrinsic value

Part II: Bundles of rights

4.Control and use rights

5.Exchange rights

Part III: Property regimes and policy panaceas

6.Policy panaceas

7.Individual and common property

8.States and hybrid regimes

9.Market policies

10.Conclusion

Glossary

Appendix: Ostrom’s design principles

References

Index

Acknowledgements

This book would not have been possible without the substantial influence of Elinor Lin Ostrom, which is seen on many of its pages. I have continued to benefit from a network of colleagues who I met during my time as Lin’s PhD student at Indiana University, and I am grateful for this as well. I still miss Bloomington and the Ostrom Workshop where I began to find my professional place in the world.

This book grew out of 10 years of teaching a course on environmental governance at Dartmouth College, much of it inspired by Lin’s work. I am grateful to my students in this course for their efforts to learn about the commons. I also want to thank Melody Burkins and the John Sloan Dickey Center for International Understanding at Dartmouth College for hosting a book review workshop, from which this work benefited immensely. Many thanks to my colleagues who attended this workshop to give me valuable feedback: J. T. Erbaugh, Forrest Fleischman, Maron Greenleaf, Courtney Hammond Wagner and Carey Nadell.

I have benefited from many conversations about content related to this book. Many of these discussions occurred during interviews I have conducted for the In Common Podcast. My thanks to all my interviewees; I appreciate the time and energy you have shared with me and our community of listeners. I am also grateful to David Sloan Wilson and Bruce Duthu for the time they have spent talking with me about how this work related to their own expertise. And many thanks to Rebecca Kohn for her editorial assistance, which greatly improved the readability of the book, and to Camilla Erskine at Agenda Publishing for engaging with me throughout this process.

And finally, thank you to Sarah for your patience and encouragement. It has been much appreciated. Here is the book.

Michael Cox

Introduction

It is not hard to find an article or book that calls for less reductionist approaches to environmental governance, and for a greater recognition of the complexities involved. We hear that we need to move beyond simplistic discourses that favour one solution over another based on our analytical framing and associated professional affiliations. Less addressed is the question, how do we do this? This book is my answer to this question. Specifically, in the following chapters I will explore the complexities of rights-based environmental governance. The approach is descriptive, asking about what we see in the world; and it is normative, asking why things are the way they are, and if they could be or should be different. I will explore different cultural perspectives on the idea of rights to the environment, and different rights-based policies such as protected areas and market-based policies. I will discuss multiple theories of environmental property and relate these theories to a range of cases to address an ongoing challenge facing the study of environment rights – this being a lack of synthesis across numerous cases and studies, each adding a brick to a house that no one can yet see.

In conducting this synthesis I have in mind the goal to help cultivate a new kind of environmental policy expert: someone who can make sense of a situation by connecting it at once to multiple concepts and cases; who can think of exceptions to a rule and often exceptions to these exceptions; who understands the importance of clarity as well as the unavoidability of ambiguity; and who is sensitized to the multiple aspects of human nature and their own position as an actor in the spaces they inhabit. We must combine these qualities to move us toward better outcomes for the planet and its people.

Seven brothers

Several years ago, I was in a motel in a coastal Dominican fishing village in the province of Monte Cristi, close to the Dominican/Haitian border. I heard a knock on the door. It was a local fisherman who was also a local leader, a man important to the work I was doing and to the work of my local partner, AgroFrontera. He wanted to show me something. I climbed onto his motorbike behind him, making sure not to burn myself on the exhaust pipe as I had the first time I rode a motorbike in the Dominican Republic. We zipped through the town towards the water, stopping at a small warehouse. Inside, a dozen Haitian men sat or stood on one side of the room. They didn’t say anything, and I likely would not have understood them if they had; five years of primary school French does not prepare you to understand Haitian Creole (or in my experience, French). I felt uncomfortable – a white man suddenly in their presence, in an area where there are very few white people – and I wondered what they must have thought and felt. Maybe some of them attributed some authority to me that I did not have or feel. I thought they looked dejected and resigned, but the truth is I had no idea what they were thinking.

In the centre of the room were several Dominican men. At least one of these was a government official. They had apprehended the Haitians for fishing illegally in Dominican waters. My Dominican contact wanted me to see how much of a problem illegal Haitian fishing was, and to show me the fine mesh nets the Haitians used to catch small fish. Historically the Dominican government had not done much to support local fishers, leaving a hole that AgroFrontera had worked to fill by helping the fishers self-organize into fishing cooperatives. But AgroFrontera is a small organization of half a dozen people, so there are limits to how much they can do. Moreover, their primary expertise is in agronomy, which they practised with nearby rice farmers, and they had entered the fishing sector opportunistically, as they managed their own version of the NGO funding treadmill.

My contact was trying to organize the Dominicans in his village to better manage their fisheries, and a constant refrain we would hear from our partners and other Dominicans was that the Haitian fishers would come to Dominican waters and fish with fine-mesh nets, catching fish before they had a chance to grow and reproduce. And worse, they would break corals apart with small sledgehammers and rebar to extract worms that would be used as bait for hook and line fishing. Ironically, hook and line fishing would be considered responsible, if it were not for the use of these worms as bait.

It was likely that these Haitian fishers had been apprehended in an area off the coast called Cayos Siete Hermanos (seven brothers keys) Wildlife Refuge, so called because there are seven small islands that one can see off the coast on a clear day. Historically, this is a paper park: you can find its boundaries on paper but there is little to no enforcement of any rules for environmental use within it. This area is not directly north of the Dominican Republic: it is directly north of Haiti. If Haitians in a nearby town go directly north, they will find themselves fishing illegally in Dominican waters. While the terrestrial boundary in the area travels mostly north to south, the marine border takes a left turn to move at a 45-degree angle northwest from the coast, including the wildlife refuge in Dominican territory. While this area is formally Dominican, informally, it is an international fisheries commons, and the two groups using it do not get along. It is a de facto open access property regime, with few controls limiting access and extraction. AgroFrontera has been working to organize fishing cooperatives in nearby Dominican fishing communities, with intermittent success.

Environmental property rights

By all accounts the fisheries where I have worked in the Dominican Republic and along the border are deteriorating as a result of poor and absent management. Dominican fishers feel that the Dominican state should help them, but the state, while claiming formal authority over marine resources, has been mostly absent (Cox et al. 2018). Watching this all unfold has been humbling as someone who is a certified expert in environmental governance. And this is not a large system; only a few hundred fishers are involved. It is relatively well-defined and the fish and the people are not crossing large distances. There are much larger environmental problems to address, from groundwater depletion to marine eutrophication to deforestation and climate change. How do we address these problems?

The answers to this question hinge on the central topic of this book: environmental property rights. These are social institutions that determine who can and who can’t access and interact with the environment, and how. A right is a claim to an action or an outcome, and a property right is a kind of right where ownership over something is claimed. It is therefore a relationship between an owner and something that is owned. The claiming aspect of a right also implies that it represents a relationship between the claimer and other social actors (Bromley 1991). Finally, an environmental property right is a property right that involves ownership of some aspect of the natural environment, and therefore depends on us conceiving of parts of the world around us as ownable, and actively trying to implement ownership claims.

Writing this book has been a way of making sense of experiences like the one I just described, as well as the experiences of many others. A primary motivation for this book is the fact that the dominant theory of environmental property rights, for example as I learned it, is poorly integrated with many relevant disciplines, perspectives, ideas and experiences. In the first two sentences of their co-authored chapter on the economic and legal analysis of property rights, Ostrom and Cole (2012: 37) say the following:

Property theory has not kept pace with the growth of empirical and historical data on property systems. Economists, legal scholars, and other social scientists continue to rely on simplistic, outmoded, and incomplete models that fail to capture the variety and complexity of property arrangements found throughout the world.

This book represents my attempt to address the challenge that Ostrom and Cole present with respect to rights to the environment. There is a wide diversity of such institutions in the world, and yet this diversity has not been fully documented and integrated into a coherent framework. And documenting this diversity is not merely an empirical exercise, but a normative one, because environmental rights influence outcomes that we care about. My goal is to provide readers not only with a thorough documentation of institutional diversity in this space, but to help them answer normative questions about rights: which approaches help us achieve the outcomes that we seek?

Consilience

To accomplish this goal, we need to make interdisciplinary connections. In the words of E. O. Wilson, we must strive for consilience, or a unity of understanding, to deal with our environmental problems (Wilson 1999). There are several ways to think about the importance of consilience. One is through the missing variable problem, which is a concept from statistical analysis that can be generalized to any causal claim about the impact of one factor on another. The issue here is that inferences about the impact of a supposed cause on an outcome may be biased by the influence of another factor that is left out of the analysis. A good example of this comes from the lobster fishery in the US state of Maine. This has been one of the most famous cases of successful environmental co-management, or joint governance between communities and a supportive government, with persistently high lobster catches being attributed to a series of important institutional innovations, several of which we will discuss later on (Acheson 2003). But this is not the whole story. As Steneck et al. (2011) describe, several other factors have contributed to maintaining the lobster population, including the fact that lobsters are effectively ranched as opposed to fished, with large amounts of herring and other fish being put in lobster traps. Other factors include the extirpation of cod, which had been a predator of lobster, and a changing climate with the Gulf of Maine warming faster than almost any other body of water on the planet, potentially supporting lobster populations there (Goode et al. 2019). Each of these factors may contribute to the high abundance of lobsters, meaning that we cannot necessarily give all the credit to the institutions that govern how lobsters are caught. The missing variable problem tells us that if we don’t tell the whole story, we may be wrong about parts of the story that we do tell.

Another value of consilience is that we can do more with the concepts we have if we understand how they are related to many other concepts via what is called a network effect. In the previous section I provided a standard definition of environmental rights, but this is not all there is to it. I see environmental property rights as the hub in a network of concepts that we will explore to achieve a holistic understanding of their place in society and human–environment relationships. My goal in this book is to take readers on a walk through this network.

Too often, discourses of environmental rights have been dominated by the perspectives of law and economics, without consideration of other relevant disciplines. We see this in practice: the World Bank, whose work closely engages with environmental property rights, often hires economists, but rarely has positions open for anthropologists or sociologists. A range of theories from a diverse set of fields are applicable to the study of environmental rights, including cultural anthropology and human geography, Indigenous studies, behavioural economics and social psychology, evolutionary theory, ecosystems theory and restoration ecology, and the interdisciplinary study of the commons, which is my primary intellectual home. Achieving consilience means that while we consider arguments made by economists and legal scholars, we do so without privileging their claim to expertise in this area over others’ perspectives. Understanding these different perspectives will help us avoid the tunnel vision of professionalization and expertise, from which we only see the world through a narrow lens that socially empowers while it analytically constrains.

The interdisciplinary nature of this work means that I am not an expert on much of the individual cases and perspectives that I will be incorporating into the text. My formal expertise when it comes to environmental property rights is fairly orthodox, or Western, and I’ll be referring to the traditional Western perspective throughout the book. I will be talking about customary and Indigenous practices and perspectives on environmental rights, while I am not a member of a resource-dependent community, and I am not an Indigenous person. The synthetic nature of this book means that we won’t be able to dig into the complexities of individual cases as much as we might like, and we need to be aware of or trade-off between developing intra-case and intra-disciplinary understanding and inter-case and inter-disciplinary understanding.

Throughout the text I have striven to maintain awareness of my limitations and to refrain from forcing other points of view to accommodate my own perspective. With respect to my position as an outsider, particularly to the academic disciplines that I draw upon, I think the humility of the non-expert is an important strength that I will argue for, and try to embody, throughout the book. The point of interdisciplinarity is that there is no one perspective and an associated group that has privileged access to the truth. The interdisciplinary approach I take also means that we will be engaging with concepts that one might not normally associate with environmental property rights, and that I will not be arguing for a unified theory of environmental property rights. Instead, I will consider a family of theoretical claims, and seek to connect them through a network of concepts.

The goal of this book is to help people who want to make sense of the environmental property rights arrangements that they find. And we want to make sense of real-world systems to honour their strengths and consider their problems. I want to help scholars and practitioners ask more helpful questions, and to be more self-aware of the assumptions they are making when they ask these questions. I don’t think there is any one optimal way of engaging with the environment. If there is one lesson that I remember learning from my undergraduate degree in philosophy, it is that for any weighty principle we can think up to govern human behaviour, a clever person has thought of a reason why, or a situation where we would not want to follow that principle in practice. This can leave us without a sense of firm ground beneath our feet. But rather than insisting the ground adapt to our need for certainty, we will do better to adapt our outlook to shifting ground.

Plan for the book

The book is divided into three parts, each of which stands on its own, but with relationships to the others that I will draw out.

The first part develops the theory of collective action. This refers to a family of arguments about how and when humans can work together towards a common goal. The closest connection between the discourses of collective action and environmental property is seen through the theory of the tragedy of the commons, which predicts a lack of collective action to preserve shared resources in the absence of boundaries, or rights that constrain access. This is what I have been seeing in the Dominican Republic for the past 10 years. Chapter 2 unpacks what we mean by boundaries and lays out my interpretation of the dominant theory of environmental property rights, which I call the theory of environmental reciprocity. In Chapter 3 we complement this with a discussion of the principles of kinship and reciprocity that, while closely integrated into the theory of cooperation, have historically not figured prominently in the literature on environmental rights. This is an important connection to make, for it provides us with another perspective to understand how the tragedy of the commons can be avoided through evolved kinship-based and reciprocal relationships with nature. Like boundaries, while psychologies of kinship and reciprocity are found among the fishers that I work with in the Dominican Republic, any application of these psychologies to the marine environment is largely absent.

Part II of the book goes further to document the diversity of property rights approaches by unpacking two questions: what does it mean to say one owns the environment, and what types of environmental principles and uses are used to establish such ownership? Different types of use of the environment also play a role in establishing ownership, and here the answers to the two questions overlap. Access, for example, is a fundamental right to physically enter a space, and repeated access is often used to establish one’s right to the environment.

The most important idea with respect to the first question is probably the idea of bundle of rights (Schlager & Ostrom 1992). This represents the idea that there is no single way to own something. Instead, rights are distributed in semi-independent pieces. You may be able to access a property, but not physically change it or extract anything from it. You might be able to extract water from a river, but you cannot exchange this right with someone else without the approval of a local community. Another way to think about this is that rights come with restrictions. In the Dominican Republic, much of the discourse has been about what fishing gear should be allowed. It is illegal to fish with compressors (compressed tanks of air) as these are dangerous and increase fishing intensity. As I mentioned earlier, a central complaint that Dominicans have about Haitian fishers is the fine-mesh nets they use to catch small fish.

Turning to the second question, the allocation of environmental rights, in addition to occurring through use of the environment, can be based on many different criteria, including the dimensions of time and space and the principles of equity and efficiency. Often such principles conflict: as I mentioned before, the Siete Hermanos Wildlife Refuge is legally in Dominican water, and so nationality is used as an allocation principle by Dominicans. But what we will call the proximity principle (whoever is closest) would argue at least as much for the rights of Haitians.

In Part II we will address these two questions through a basic typology of rights that consists of use rights, control rights and exchange rights. Use rights are what they sound like, and there are several different ways we could directly use the environment. Control rights grant authority to design, allocate and enforce the rules associated with use grants. Exchange rights grant the authority to exchange one’s rights to the environment. One final complexity is that we will distinguish between direct use and exchange rights, and entitlements, or the right to indirectly benefit from how the environment is used and how rights are exchanged. In Chapter 4, we tackle use and control rights, and in Chapter 5 we turn to exchange rights.

Part III unpacks the ideas of panaceas and property regimes. While the tragedy of the commons is the most often-cited problem that property rights address, an equally large problem is the tendency for groups to assume that a certain policy is best suited to solve this problem, overgeneralizing their preferred solution through simplifying assumptions. For example, during my time working with AgroFrontera, I have seen this small organization determine a go-to solution in working with the local fishing communities. Developing a preferred solution can provide some important psychological benefits for those involved by helping them feel efficacious. In Chapter 6, we unpack the relevant features and enabling conditions of policy panaceas.

Chapters 7 and 8 deal directly with the concept of property regimes. These have played an important role in the environmental rights discourse through arguments over which regime (mostly public, private or common) is best, and policy panaceas rely on assumptions about property regimes and the actors involved. There has been an evolution in the categories of actors that are commonly considered when talking about property regimes. Dominant economic discourses prefer a dichotomy of states and markets, which I disagree with because of two implications. One, that a market is social actor like a state, which it is not, and two, that anything non-state should be lumped into a vague market category, as if society is only about economic transactions. Following Ostrom’s (1990) argument that communities are a viable owner of environmental property, a trichotomy of states, individuals, and communities has dominated a newer property regime discourse.

In Chapter 7 we explore the complicated relationship between individual and common property and the relative merits of each. In Chapter 8, we consider the importance of property regimes in explaining outcomes relative to other factors, such as how such regimes are implemented, and we explore the role of the state and its relationship to common property. We conclude the chapter by considering a relative newcomer to the environmental property regime space: nature itself.

Finally, Chapter 9 turns to the topic of market policies, which represent hybrid property regimes involving ownership by both resource users and governments. They also represent maybe the most dominant policy panaceas that we will discuss in this book. In this chapter we will discuss three types of market policies. The primary examples we will rely on come from catch shares in fishery policy and carbon markets in climate policy.

I conclude with some reflections on the nature of expertise needed to improve the discourse and practice of environmental property rights. Here I argue for a diagnostic approach to analysis that unpacks the relevant dimensions of a problem as well as the responses to it. I also unpack the types of attributes that experts and leaders need to promote better rights-based, environmental governance.

Part I

Collective action and groups

Our ability to work together or not has a dramatic impact on our ability to resolve any environmental problem. We therefore begin by exploring the concept of collective action, or cooperation. The theory of collective action has been developed in multiple independent disciplines. The perspective of evolutionary theory frames collective action as a mystery: why would individuals cooperate with each other when it is individually costly and publicly beneficial? In environmental studies, the failure to act collectively is associated with the tragedy of the commons, or environmental ruin.

The first chapter in this part deals with the tragedy of the commons as the dominant framing for environmental property rights. Here we will also interrogate the utility of this framing and consider others as well. Chapter 2 builds directly on Chapter 1 by asking how social and ecological boundaries can facilitate cooperation and address the tragedy of the commons. In this chapter we also consider the different types of boundaries that we see and what function they play. Finally, in Chapter 3 we turn to the primary mechanisms for cooperation among humans or any species: reciprocity and kinship. We will also see that the human psychologies of reciprocity and kinship can be used to motivate environmental stewardship and reframe the Western perspective on environmental property rights.

1

The tragedy of the commons

The fishers in the Dominican Republic are facing the potential collapse of their fishery. The dominant narrative for why this is happening is known as the tragedy of the commons, popularized by Garrett Hardin through an article of the same name (Hardin 1968), although Hardin attributed his inspiration to William Forster Lloyd, a British economist and historian. The tragedy of the commons is the single most common narrative used to motivate the implementation of environmental property rights. In this chapter we discuss how it has been used and how it relates to theories and models of cooperation. We will also explore the limits of the idea by considering what it leaves out: namely, inequalities of power and influence. We conclude by considering additional theories that need to be considered when describing the causes of environmental degradation that need to be accounted for by environmental institutions.

The famous scenario that Hardin got from Lloyd is the one that sticks with most with people who have read his work. It is an image of cows on a pasture, with each herdsman deciding how many cows to place on