Rationing the Use of Common Resources: Problems of Design and Constitutionality

Abstract

Traditional regulation is conceived as limiting the individual use of a natural resource in order to preserve its minimum quality; for instance, the emission of pollutants is free if certain air quality thresholds are observed. The appropriate constitutional test is whether the implied encroachment on basic rights of enterprise and property is in the public interest and proportional to it. With the further decline and growing scarcity of natural resources new regulatory instruments have been tried among which the capping of resource use and possibly making tradeable of use rights is a particularly innovative instrument. Such rationing of resources reverses the traditional conception: the use of resources now becomes a privilege The resource is no longer basically free but redefined as being a public resource the use of which is apportioned. In its first section this chapter exemplifies the core characteristics of quota systems in four policy fields, climate protection, fisheries, air pollution, and ozone layer protection, looking both on international and national levels. Distinguishing between a strong and a weak version of quota systems it then discusses questions of best design, asking how the common resource could be legally conceived, how overall quotas should be identified, what criteria should be used for the allocation of individual quotas, and whether trade in quotas should be made possible. The third section raises constitutional questions about socio-economic failures quota systems may run into. Two opposite versions of failures may come about: authoritarian abuse and indolent under-use. Thus rationing resources is an ambivalent instrument: if skilfully shaped it can be a perfect solution in situations of scarcity. But it can also be frightening if abused for either ecological authoritarianism or the greenwashing of inaction. The constitutional questions posed are whether rights to property and equal treatment can shield against over-restrictive practices, and, contrastingly, whether rights and obligations demanding state environmental protection can safeguard from inaction.