The Tragedy of the Commons Shows Good Hedges Make Good Neighbors
Author
Stephen R. Dujack - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2025
Issue
3

Last spring, in the span of half an hour I witnessed both Garrett Hardin’s “Tragedy of the Commons” and Robert Frost’s meditation on whether “good fences make good neighbors.” And the coinciding events—highlighting opposing horns of a classic dilemma concerning property rights and wrongs—when taken together sound like a hypothetical case study for first-year law students.

Here is the brief: My house is shoved sharply to the far west side of its lot to allow room for a high-tech electric-powered drainfield to process wastewater. My lot had failed the standard soil percolation test that would have allowed a normal septic system. Because of the low permeability, the drainfield is huge, and extends into the front lawn of my neighbor all the way on the east side, where I have an easement. The salient was granted by the zoning board to allow a developer, who owned both lots, to construct what would become my house. A few years later, the developer sold the older house. I never brought up the issue of the invisible easement with the new Mr. East—why bother?

Meanwhile, my neighbor to the west, when he found a new house had sprung up a few feet from his porch, planted an arborvitae hedge just inside our border. This neighbor too ultimately moved away and I never saw the new Mr. West when he moved in, because the hedge totally obscured their property.

By that time, the hedge was lush and full. I contributed by cutting down two trees that were shading the bushes and trimming back a third. Over time, both the Wests and I had the value of our properties appreciably increase, not only in the eyes of a prospective future buyer but in our own appreciation and enjoyment of the privacy today. One of the bundle of rights constituting the property right is quiet enjoyment. The Wests were able to enjoy their privacy to the extent that they built a deck on the side of their house facing my house, an act that would have been unthinkable before the hedge was there.

So you can understand my concern this past winter when I began to see the Wests’ house, vaguely, through the needles. I quietly enjoyed my yard less and began to worry that my property could be less attractive to future realty suitors. Then I noticed that a series of pine trees on the Easts’ side of the border had sprung up to the extent they were intruding into the arborvitae and causing the hedge to shed needles. I realized that the row of pines shaded the deck and was more attractive than the hedge, so he was acting reasonably.

I had moved to exurbia in large part to escape the constant nuisances of crowded life inside the Beltway. My current house is in a neighborhood with lots two acres in extent. My house is later infill development; as new construction, it has its own well. The older houses in the neighborhood, some three dozen, were served by an ancient drinking water system run by an ancient overseer. A few months ago, he announced he was retiring and putting the system up for sale. But no buyer could be found for such a small utility.

That set off a mad race to hire well drillers who could complete the job promptly. However, I was surprised no one was concerned about what would happen with three dozen new wells tapping into our shared aquifer just yards apart, and with no price signal anymore to moderate consumption. Cue Garrett Hardin’s foundational essay on common resources.

Meanwhile, the hedge-gap issue required a meeting with Mr. West. “I let my neighbor know. . . And on a day we meet to walk the line,” as Frost wrote in Mending Wall, although I suspect he didn’t use email. “He is all pine and I am apple orchard.” Mr. West’s problem trees are indeed pines, but mine are maples not apples. Still, Frost’s observations resonated. “‘My apple trees will never get across,’” I told Mr. West, quoting Frost and pointing at the maples.

Unlike Frost’s wall, with gaps caused by nature unseen in conflict with the human intrusion, in real life the untrimmed pine trees on Mr. West’s side were the clear cause of the gap in the wall of arborvitae viewed from my side, to the disparagement of my property’s value and my enjoyment. On the other hand, the wall of pines shading the hedge, both owned by Mr. West, were causing a gap invisible to him, and afforded him a pleasant view from his deck. So, did he have a legal obligation to preserve the hedge’s value to me? Did I have a property right in the viewshed that I didn’t own, but had invested in its health? Happily, Mr. West agreed to address the issue.

And as we concluded our meeting, we heard an enormously loud sound of metal striking metal, then the grinding of gears spun by a huge diesel engine. Mr. West and I walked rapidly along the hedge toward the street and saw a huge crane, pounding sections of pipe into the ground for a new well on the Easts’ property. The site of the intrusion was exactly in the middle of my drainfield easement. I didn’t have the heart to tell the Easts to choose a more congenial location.

But some final questions: Is there a conflict here over a shared land resource? Or would the law say that my rights are for the surface soil and the Easts have the right to the groundwater two hundred feet below? My deed certainly does not make that distinction.

Notice & Comment is the editor’s column and represents his views.

“We write to you representing our nation’s water sector to express our concerns regarding the proposed cuts to EPA’s budget.
. . . Secure and reliable water infrastructure is a cornerstone of national security and economic stability. Should water infrastructure underinvestment continue, alongside a reduction in the states and EPA’s capacity, our nation’s water systems will be increasingly vulnerable to natural and man-made disasters.”

—American Water Works Association letter to EPA Administrator Lee Zeldin

Trump’s Moves Against Climate Policies Are “Unprecedented”

All new presidents have their own agendas, but the speed and scale of Mr. Trump’s efforts to uproot climate policy is unprecedented. “This is not the kind of stately tennis match of the usual switch-over in administrations,” said Abigail Dillen, president of Earthjustice, an environmental law firm. “This is full on Fight Club.”. . .

“The old paradigm was an administration will come in and do all the hard work of dismantling the old administration’s policies and then replacing with its own,” said Ms. Dillen. “This is a very different strategy, which is that we may not even bother to replace policies because we don’t care about complying with the law.” . . .

Mr. Trump has frozen funds appropriated by Congress for clean energy projects, taking particular aim at wind energy, the country’s largest source of renewable power. He has stopped approvals for wind farms on public land and in federal waters and has threatened to block projects on private land.

—New York Times

News That's Reused

By now the actions of Elon Musk’s Department of Government Efficiency in the early weeks of the Trump administration are well known in broad strokes, but some of the details are also concerning. And amusing, except for the fact that millions of people support DOGE’s actions.

In March, the New York Times did a deep dive into recent federal agency messaging to their employees about promoting the new president’s policies, including the White House mandate to review government documents and websites to be sure no objectionable words appear. The fact that there is such a list is double-plus ungood; Orwell knew that limiting language limits thought.

In the newspaper’s report on Trump’s list, just after “enhancing diversity” is another phrase we love to hear: “environmental quality.” That is now an entry in an official administrative hush order emanating from the Trump White House, the concept no doubt destined to create today’s equivalent of the memory hole and rewrite history. The Council on Environmental Quality will presumably be renamed.

The White House also disapproves of the word “pollution,” which term it deemed toxic waste cast upon the dustheap of history, along with measures to limit it. Ditto for the phrase “vulnerable populations,” as in those exposed to “pollution.” Eleven different variations of “racial” ensure one doesn’t sneak through the censors, and three forms of “discrimination.” but surprisingly “environmental justice” isn’t proscribed. Both “tribal” and “Native American” are on the list, along with “Black” and “BIPOC.”

The list is alphabetical. Four in a row show the breadth of the expungement: “clean energy,” “climate crisis,” “climate science,” and “commercial sex worker.”

Even worse have been many of the “reforms” mandated for agencies with environmental portfolios. According to the Los Angeles Times in early April, “Environmental groups were outraged this week after the Environmental Protection Agency, acting under orders from President Trump, invited coal plants and other industrial polluters to seek to bypass key provisions of the Clean Air Act that limit hazardous emissions by sending an email.”

According to the Times, quoting the agency announcement, “‘EPA has set up an electronic mailbox to allow the regulated community to request a Presidential Exemption under [a provision] of the Clean Air Act.’” The announcement even provided a template email to speed the process. Per the Times: “In its announcement, the EPA noted that the Clean Air Act allows the president to exempt ‘stationary sources’ of air pollution—that is, sources that are not vehicles, essentially—from compliance with the rules for up to two years ‘if the technology to implement the standard is not available and it is in the national security interests of the United States to do so.’”

The CAA section includes a broad range of listed harmful emissions. “The provision in question, Section 112(i)(4) of the Clean Air Act, applies to the regulation of nearly 200 pollutants, including mercury, arsenic, benzene and formaldehyde — known carcinogens that also have been linked to reproductive and developmental issues, respiratory illnesses, and other adverse health outcomes.”

“‘This is the email inbox from hell, where vital protections for the air we breathe go to die,’ the paper quoted the Center for Biological Diversity. The CBD noted in a statement that polluters can presumably receive a “get out of jail free” card “just by sending an email.”

Good Hedges Make Good Neighbors: A Tale of Poetic Justice

IPCC Ignores That Institutions Are the Creatures of Fossil Fuels
Author
Craig M. Pease - Scientist and Former Law School Professor
Scientist and Former Law School Professor
Current Issue
November-December 2021
Issue
6
Craig M. Pease

The Intergovernmental Panel on Climate Change’s latest report is grim. Global CO2 emissions were a mere 0.2 billion tonnes per year in 1850, increasing to 6 billion in 1950, and are 36 billion now. We are nowhere close to net-zero.

Emissions continue to grow. In 1981, when James Hansen and his colleagues published their seminal paper on climate change, the atmospheric CO2 level was 340 parts per million. Today it is 415 ppm.

The wishes of policymakers notwithstanding, it is now practically impossible to limit warming to 2 degrees Celsius. Since 1850, cumulative CO2 emissions have been 2,500 billion tonnes. Very roughly, each additional 1,000 billion results in about 0.5 degrees of warming. Holding warming to 1.5 or 2 degrees would require future cumulative emissions to be limited to roughly 500 or 1,300 billion tonnes, respectively. That is just 20 percent to 50 percent of total cumulative emissions since 1850.

As shown by University College London’s Dan Welsby and colleagues in a recent Nature piece, staying under 1.5 degrees would require fossil fuel use to decline each year by several percent. Even staying under 2 degrees would require a quick decline in fossil fuels consumption. Yet since the groundbreaking 2015 Paris Agreement, global CO2 emissions have continued to increase.

Climate policy has been a colossal failure. Why?

This thorough and comprehensive IPCC report, “Climate Change 2021: The Physical Science Basis,” is an extraordinary account of how carbon dioxide alters energy flows through the atmosphere, oceans, ice, biosphere, and climate. To understand the failure of climate policy, following the reasoning of pioneer systems ecologist Howard Odum, we need to augment the report with the physical science basis of human society, especially energy flows through human institutions.

Critically, those 2,500 billion tonnes of CO2 emitted since 1850 not only altered the climate, but just as importantly, entirely restructured our institutions. Today’s economic actors and corporations, government agencies, and civil society organizations are qualitatively different from the institutions of 1950. They are even more different from those of 1850, when the institution of human slavery was widespread in the United States. In 1900, roads were designed for horses. In 1930, less than 10 percent of U.S. homes had a refrigerator.

Energy from fossil fuels powers today’s institutions. About 80 percent of total human energy use today derives from coal, oil, and natural gas. Few appreciate that to successfully address climate change, we must replace or profoundly restructure the entire institutional ecosystem that sprang forth to feast on the energy from fossil fuels.

The dramatic increase in CO2 emissions since 1950 accompanied an equally dramatic increase in goods and services. Will Steffen and colleagues’ classic 2015 paper on the Anthropocene presents graphs showing huge increases from 1950 in water use, fertilizer use, tourism, foreign direct investment, McDonald’s restaurants, motor vehicles, paper consumption, and so on. Underlying each good or service are diverse and numerous institutions, including multinational corporations, small businesses, government programs and regulations, and advocacy organizations. The goods and services we take for granted are most all produced by institutions whose energy source is fossil fuels.

The energy transition needed to address climate change will be slow, difficult, and ridden with conflict. Since 1850, the world has enjoyed an ever-expanding energy pie, leading to abundant opportunities for conflicts to be resolved with win-win solutions. A successful climate policy will cause the energy pie to shrink. In a world of net-zero emissions, many more conflicts will be zero sum.

Carbon dioxide is different. Classic environmental problems such as water and air pollution, endangered species, and ozone depletion are all unwanted byproducts of wanted goods and services. Those externalities have no intrinsic value. We regulate them in ways that impact only the periphery of our institutions, without altering core energy flows. By contrast, a successful climate policy must regulate energy, which most certainly has substantial value to producers and consumers. Energy is not an externality. It is intrinsic to modern civilization.

Quickly reducing fossil fuel consumption would likely result in an equally quick collapse of our institutions, ways of living, and economy. If instead we fail to stop burning fossil fuels, we face a collapse caused by climate change, albeit somewhat less immediate. The institutions that define modern civilization exist only because of the energy from fossil fuels.

IPCC Ignores That Institutions Are the Creatures of Fossil Fuels

New Book Arms Policymakers, Lawyers, Private Sector With Tools to Combat Climate Change in the United States
March 2019

Washington, D.C.: With Democrats and Republicans arguing over the virtues and pitfalls of a Green New Deal, and with President Trump’s latest budget proposal cutting many environment- and energy-related programs, climate change policy in the United States is as divisive as ever. But a comprehensive new resource from leading climate attorneys released Monday lays out a myriad of legal pathways available to policymakers at every level of government and in private governance to reduce greenhouse gas emissions.

Mixing Private Action and Climate Policy
Author
G. Tracy Mehan III - Antonin Scalia Law School, George Mason University
Antonin Scalia Law School, George Mason University
Current Issue
May-June 2018
Issue
3

Distinguishing government from governance, identifying the separate yet complementary roles of the private and public spheres, say, in the realm of environmental management, and thinking seriously about the opportunities and barriers of an integrated or collaborative approach to confronting the challenges of the day — none of this would have made any sense to a citizen of the Roman Empire in the time of Augustus.

The classical view did not recognize anything like civil society beyond the Empire itself encompassing both political, social and religious aspects. It was only after centuries of struggle between Church and Empire, state and society, and the emergence of varying degrees of individualism, did the concept of a civil order and institutions (church, family, community, labor unions, corporations), antecedent to and independent of the state, come to pass.

Without civil society, government and governance are essentially the same. With civil society government is simply part of the complex web of governance by which a society orders itself as well as the state. Thus, no longer is governance viewed as a synonym for government.

The late Elinor Ostrom of Indiana University, the first woman to receive the Nobel Prize in economics, did pioneering research on a plethora of collaborative approaches to resource management — governance if you will — around the world in ways that mitigate the Tragedy of the Commons not imagined by Garrett Hardin, who reduced everything to either regulation or privatization. She demonstrated that user-managed fish stocks, pastures, woods, lakes, and groundwater basins, in many countries and cultures, are able to establish norms of behavior, sophisticated rules for decisionmaking, and even enforcement mechanisms. Her classic book on the subject is Governing the Commons: The Evolution of Institutions for Collective Actions (1990).

Given the state of environmental protection today, with many problems dispersed throughout society, the landscape, the air- and watershed, involving numerous small sources or causes of harm, all within the control of private parties, households, farms and institutions, the old top-down, hierarchical model, driven by a federal government much less revered now than in the 1970s, seems inadequate.

Writing in 1997, Daniel Esty and Marian R. Chertow of Yale called for the “next generation” of environmental policies “that are not confrontational but cooperative, less fragmented and more comprehensive, not inflexible but rather capable of being tailored to fit varying circumstances.” See introduction to Thinking Ecologically: The Next Generation of Environmental Policy (1997). They noted the value of keeping pace with the important elements of “institutional realignment that are occurring in society. Notably, the role of government is narrowing, the private sector’s responsibilities are broadening, and nongovernmental organizations, from think tanks to activist groups, are increasingly important policy actors.”

Michael P. Vandenbergh and Jonathan M. Gilligan, respectively, professors of law and engineering at Vanderbilt University, argue strenuously for private action and governance specifically, in the context of climate change and the flagging efforts of governments, especially the United States, to take meaningful action. They are not anti-governmental action. But they believe that time is flying and private action provides a realistic, interim strategy until an effective political consensus develops before catastrophe befalls the world. Their Beyond Politics: The Private Governance Response to Climate Change is an imposing work of academic scholarship (e.g., over 200 footnotes in one chapter alone). But their engaging, accessible writing style makes the slog a pleasant one for the diligent reader. It might have been subtitled Making a Virtue of Necessity given the realities of climate politics, global aspirations for economic growth, and the complexity of the science.

In the very first line of their preface, Vandenbergh and Gilligan cite Gallup for the proposition that two thirds of Americans believe that big government is the greatest threat facing the United States. So any systematic regulation to mitigate climate change faces predictable resistance. The authors seem to believe that the Trump administration’s rollback on carbon regulation is a temporary phenomenon, but they astutely observe that the 2009 Waxman-Markey cap-and-trade bill failed “even though the party that espouses support for climate mitigation controlled the White House and both bodies of Congress — a failure that seems remarkable until it is viewed against the backdrop of two decades with only one major new pollution control statute.”

“Only in the past several years have scholars begun to recognize that a fundamental shift has occurred away from federal legislation as a social response to environmental threats, a shift that became much more apparent with the 2016 elections,” write the authors. They might also have noted the 1997 vote of 95-0 in favor of the Byrd-Hagel Resolution in the U.S. Senate against signing onto the Kyoto Protocol.

Vandenbergh and Gilligan make a sincere, passionate, even eloquent case to both conservative and liberal skeptics, the former skeptical as to climate policy in general and big government in particular, the latter concerned about undermining the case of strong governmental action on climate.

Essentially, these authors see zero chance of the community of nations meeting the goal of stabilizing global temperature at 2 degrees Celsius as called for in the Paris Agreement. “In fact, the Paris Agreement, even if all commitments are fulfilled, will allow an increase in global emissions of roughly 34 to 46 percent in 2025 over 1990 levels.” Even with full implementation of all Paris commitments, the globe is likely to see temperatures of more than 3 degrees Celsius above pre-industrial ones.

The Vanderbilt professors look to private action to achieve “a significant fraction of the necessary reductions — carbon dioxide emissions equivalent to roughly 1 billion tons out of the 5.5 billion tons per year of reductions necessary over the next decade to close the Paris Gap.” They view this strategy as “buying time for a more comprehensive government response” at some indeterminate point in the future, presumably post-Trump. They do not posit “an all-or-nothing argument that the world must choose between public and private governance. In our view, they are complementary, and we should pursue both.”

The authors cite many instances of effective private action, notably major institutions and corporations such as Walmart, Microsoft, Google, and the like, corporate giants which can lean on their suppliers for emission reductions, practices that could be scaled up nationally and internationally. They take heart in Elinor Ostrom’s concept of “polycentric governance to reduce GHG emissions” which she first applied to the management of water resources and the provision of municipal services. This refers to the use of multiple scales of government and nongovernmental organizations to address collective action problems, such as managing common pool resources.

(Readers of The Environmental Forum may recall Professor Vandenbergh’s article, “The Drivers of Corporate Climate Mitigation,” in the January/February issue, providing a succinct statement of the case for private action in that realm.)

Big fans of Pope Francis and his 2016 encyclical addressing the moral dimension of climate change, the authors view the Catholic Church as not just an influencer on government, but also “a private regulator of its energy suppliers and emissions in and of itself.” Based on their back-of-the-envelope calculations, Catholicism, with its many churches, schools, hospitals, orphanages, and missions, would be among the top 50 largest emitters in the world if it were a country. Whether or not such a vast collection of bishoprics, dioceses, religious orders, lay institutions, and the like could ever be subject to such centralized management, notwithstanding its unity of doctrine and practice, it is an interesting thought experiment, as the Germans say.

Vandenbergh and Gilligan aim to ground their optimism on sound reasoning, to wit: “Our view that many households and corporations will respond to private initiatives by reducing emissions does not require unrealistic assumptions about altruism. Instead, the opportunity arises because private initiatives can stimulate efficiency improvements that have not yet been exploited because of market and behavioral failures. Private initiatives also can draw on existing levels of support for climate mitigation in ways that governments cannot. These initiatives also can address solution aversion among moderates and conservatives, bypassing resistance to government climate efforts that arises from concerns about big government. At the international level, private governance initiatives can supplement the slow and cumbersome international negotiations process. Private initiatives also can harness supply chains to transfer pressure for lower-carbon goods and services across international boundaries, circumventing sovereignty and free-trade concerns and increasing support for mitigation in developed and developing countries.”

The “principal barrier” is “conceptual,” i.e., “the need for opinion leaders, corporate and NGO leaders, and philanthropists to grasp the magnitude of the opportunities available to them.”

Beyond Politics is provocative and challenging, well-sourced and full of insights as to motivational approaches to household and institutional behavior. Yet, nowhere in the dozen or so pages of the book’s index will the reader find any references to either adaptation or resilience in the face of climate change. The authors chose to focus exclusively on mitigation. Society, however, may be forced to consider other options given the stark political and economic realities of climate policy.

On private action and climate policy.

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