Conservation through Collusion: Antitrust as an Obstacle to Marine Resource Conservation

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This article explores the tension between antitrust principles and conservation of the marine commons. Part I provides an overview of fishery conservation efforts in theory and practice. As a common pool resource, marine fisheries will fall prey to the tragedy of the commons unless consumption is limited to sustainable levels, whether through property rights, community norms, or government regulation. Part II briefly explains the antitrust concerns raised by efforts to restrict output, fix prices, or allocate territories. Although each of these actions may, in specific circumstances, facilitate conservation efforts, they are each presumptively suspect under antitrust law. Part III explores the conflict between conservation and antitrust in fisheries, focusing on cases in which competitors or government officials sought to prosecute fishing unions and other cooperative fishery organizations for antitrust violations. These cases illustrate that collective efforts by fishers to control exploitation of the underlying resources are presumptively illegal under antitrust law. This part also explores potential exemptions for certain types of cooperative institutions as well as the impact of antitrust concerns on the implementation of property-based fishery management regimes. Part IV then considers how antitrust concerns may inhibit conservation or other environmental goals in the contexts of oil production and pollution control. While the focus of this article is fishery conservation, the analysis is potentially applicable to other contexts in which antitrust law inhibits non-governmental common pool management efforts. Part V explores how conservation objectives might be reconciled with antitrust concerns. Insofar as antitrust doctrine is motivated by efficiency concerns, antitrust law need not be hostile to private efforts to conserve common pool resources. The doctrine of ancillary restraints provides a sound analytical foundation for approving at least some cooperative fishery conservation efforts under the rule of reason. Insofar as existing antitrust precedent forecloses such a result, statutory measures may facilitate private cooperative fishery conservation efforts. In either case, antitrust law should be made more hospitable to non-governmental conservation efforts.