Atmosphere Commons

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Definition

"The atmosphere as a global commons: The atmosphere envelops the Earth, nurturing and protecting life. In response to God's love for creation, we have a responsibility to care for the well-being of Earth and its ecological processes. Plants, animals and every member of the human family are dependent on this gift and have a right to its sustaining vitality. The atmosphere belongs to no one. It is to be shared by everyone, today and in the future. Economic and political powers can not be allowed to impair the health of the atmosphere nor claim possession of it.

"Global commons" refers to something shared in common by a community.

[...]

It is to be cared for responsibly and shared by all nations. In order to cope with the consequences of human domination over nature, we need to recognise and affirm the atmosphere as a global commons. Commons presupposes a community - its members can claim equal rights to the common ground. A global commons presupposes a global community. We affirm the need for a just, participatory and sustainable international community. " (http://www.oikoumene.org/en/resources/documents/wcc-programmes/justice-diakonia-and-responsibility-for-creation/climate-change-water/the-atmosphere-as-global-commons-responsible-caring-and-equitable-sharing.html)


Description

David Morris:

"The “public trust” doctrine is a legal principle derived from English Common Law. Traditionally it has applied to water resources. The waters of the state are deemed a public resource owned by and available to all citizens equally for the purposes of navigation, fishing, recreation, and other uses. The owner cannot use that resource in a way that interferes with the public’s use and interest. The public trustee, usually the state, must act to maintain and enhance the trust’s resources for the benefit of future generations.

Back in 2001, Peter Barnes, a co-founder of Working Assets (now CREDO) and On the Commons as well as one of the most creative environmentalists around, proposed the atmosphere be treated as a public trust in his pathbreaking book, Who Owns the Sky: Our Common Assets and the Future of Capitalism (Island Press).

In 2007, in a law review article University of Oregon Professor Mary Christina Wood elaborated on similar idea of a Nature’s Trust. “With every trust there is a core duty of protection,” she wrote. “The trustee must defend the trust against injury. Where it has been damaged, the trustee must restore the property in the trust.”

She noted that the idea itself is not new. In 1892 “when private enterprise threatened the shoreline of Lake Michigan, the Supreme Court said, ‘It would not be listened to that the control and management of [Lake Michigan]—a subject of concern to the whole people of the state—should . . . be placed elsewhere than in the state itself.’ You can practically hear those same Justices saying today that ‘[i]t would not be listened to’ that government would let our atmosphere be dangerously warmed in the name of individual, private property rights.” (http://onthecommons.org/magazine/texas-judge-rules-sky-belongs-everyone)


Status

Texas Judge upholds sky as common property

David Morris:

"In 2010 Wood, along with Julia Olson, Executive Director of Our Children’s Trust “had the vision to organize a coordinated international campaign of attorneys, youth, and media around the idea that the climate crisis could be addressed as a whole system,” Peter Barnes observes, replacing a situation in which “legal solutions were fragmented, focused on closing down a particular power plant or seeking justice for a particular endangered species, threatened neighborhood or body of water impacted by our fossil fuel abuse.”

On behalf of the youth of America, Our Children’s Trust, Kids Versus Global Warming and others began filing suits around the country, arguing the atmosphere is a public trust. So far cases have been filed in 13 states.

In Texas, after a petition to the Texas Commission on Environmental Quality (TCEQ) to institute proceedings to reduce greenhouse gases was dismissed, the Texas Environmental Law Center sued on behalf of a group of children and young adults. The Center asserted the State of Texas had a fiduciary duty to reduce emissions as the common law trustee of a “public trust” responsible for the air and atmosphere.

The lawsuit argued, “The atmosphere, including the air, is one of the most crucial assets of our public trust….Global climate change threatens to dry up most of these waters, turning them from gorgeous, life-giving springs into dangerous flash-flooding drainages when the rare, heavy rains do come. The outdoors will be inhospitable and the children will have few places to recreate in nature as the climate changes. They will be living in a world of drought, water shortages and restrictions, and desertification.”

The TCEQ argued the public trust doctrine applies only to water. Judge Gisela Triana, of the Travis County District Court disagreed. Her letter decision, issued on July 12, 2012 stated, “[t]he doctrine includes all natural resources of the State.” The court went further to argue that the public trust doctrine “is not simply a common law doctrine” but is incorporated into the Texas Constitution, which (1) protects “the conservation and development of all the resources of the State,” (2) declares conservation of those resources “public rights and duties,” and (3) directs the Legislature to pass appropriate laws to protect these resources.

The immediate impact of the case is limited. Noting that a number of climate change cases were wending their way up the judicial ladder, Judge Triana upheld the TCEQ decision not to exercise its authority.

But a few days after Judge Triana’s ruling, Judge Sarah Singleton of the New Mexico District Court denied the state’s motion to dismiss a similar case. That will now move forward.

The Texas court is the first to support the possibility that the “public trust” doctrine may justify the creation of an atmospheric trust. One Houston law firm advised its clients the decision “may represent a ‘shot heard ‘round the world’ in climate change litigation…Given the stakes involved in such cases, clients should monitor these suits carefully—and perhaps participate as amicus curiae to support the state’s attorneys’ arguments.” (http://onthecommons.org/magazine/texas-judge-rules-sky-belongs-everyone)


Discussion

1. Jorge Buzaglo:

"With Kant’s or Spinoza’s logic, if everybody were allowed to emit greenhouse gases as much as I can, I should not emit more than the globally sustainable average. That is the only sustainable way in which my individual action can be universal law and adopted by the rest of humankind. Or in Spinoza’s terms, as a rational human being, I do not desire to pollute the atmosphere at a level that would be unsustainable if also achieved by the rest of humankind. When it comes to the election of rules and systems for the allocation of rights, the only effective rational choice for every individual on the planet is the norm of equal emission rights for all.

This ethic of reciprocity and cooperation is most probably the result of millennia of observation and experience of human conflict. Game theory arrives at similar conclusions in the analyses of games that are repeated an unlimited number of times, and where the participants can be thought to learn through experience. In infinitely iterated games, history, learning, context and negotiation can bring solutions that are more desirable than mutual or collective destruction."

(after detailing a proposal for fixed equal quota's, the author continues:)

Achieving this type of market-based solution to climate change would involve of course grand institutional innovations. The point of departure of Peter Barnes’ (2006) institutional analysis is the ‘tragedy of the commons.’ Resources without clearly defined rules of utilisation or ownership tend to be overexploited and eventually exhausted. If, for instance, the atmosphere were owned by a Waste Management Inc., it would charge dumpers a fee and limit emissions.

However, even for neoliberals, a privately owned atmosphere is unthinkable. Barnes suggests instead endowing the management of the atmosphere to a trust. If instead of Waste Management Inc., a trust owned the sky there would be a bonus: every citizen would get a yearly dividend check. This is not just a dream: since the 1980s in the US such an institution, the Alaska Permanent Fund, manages that state’s oil resources and distributes dividends among its inhabitants.

The solution is thus to develop strong institutions that have ownership rights over common resources. This is an important insight, but ignores the fact that global warming is a global problem. The atmosphere is a global good, and the tragedy is being played out on the world stage. A system whose rules are followed by just a few and whose legitimacy is not recognised by all is not an effective system. Think if the world’s three billion poor find it legitimate for them to achieve the same greenhouse gas emission levels as the rich...

The Kyoto Protocol was a first attempt at constructing a governance structure for the atmosphere. It must be recalled though, that the Kyoto protocol is not global. It covers at present not more than 30 percent of global emissions and a much smaller share of the global population — neither the US nor the developing countries participate. Similarly, the effective part of the EU’s emission rights system represents only 8 percent of global emissions (Nordhaus 2006).

Management of global resources requires global instruments. Even if ineffectual when partially implemented at the local or national level, Barnes’ idea of a climate trust fund might be a powerful initiative at the global level. What could indeed be effective is an atmosphera.org, a global trust fund with the mandate of managing the atmosphere on behalf of future generations and of investing its revenues in social programs and environmental projects worldwide, according to the equal rights principle.

This type of scheme would attract the developing countries, and also answer two objections commonly raised by the rich countries. First, it is suggested that a large share of the incomes accruing to poor countries could end in the pockets of corrupt officials and politicians. Second, it could also be possible that these incomes, even in the absence of corruption, might not benefit the poor — in many countries, public expenditures only increase the bias of an already unequal income distribution. A global, independent trust with clear mandate, power and accountability should see to it that the scheme is free from corruption and that its revenues benefit the ‘carbon-poor.’

If mandated by nation states, such an institution could even bypass local governments, and operate a somewhat futuristic direct global monitoring and redistribution scheme. With present-day computing and storage capabilities, (almost) every citizen on earth could have a ‘CO2 credit card’ — e.g. coupled to a bank credit card — on which the CO2 (equivalent) content of consumption is drawn. Periodically, the card would be credited with the amount corresponding to CO2 consumption below the overall emission right, and debited for consumption in excess of the general quota. A system of virtual or real tâtonnement would regulate the price of the emission right so as to equate supplies of CO2 under-consumers with demands of over-consumers.

A universal system of individually allocated carbon quotas is clearly superior in that the ‘commons’ nature of the problem underlying it is explicitly incorporated in the mechanism — an important trait in itself. But of course, also in the case of nationally allocated emission rights or a global CO2 tax, the equality principle should be incorporated into the dividend rules." (http://www.paecon.net/PAEReview/issue51/Buzaglo51.pdf)


2. Wolfgang Hoeschele:

'The final example of shared property I will consider here is the atmosphere. The global atmosphere is truly indivisible; the air I breathe includes gas molecules that may have recently been part of the biomass of a plant or animal or human anywhere on the planet. This also means that private property in the atmosphere is impossible. And yet, pollution rights are being created and traded as private property. To a degree, such tradable pollution permits can achieve positive outcomes (as in reducing sulfur dioxide pollution in some regions), but at the level of greenhouse gas emissions into the global atmosphere, there are severe problems with the cap and trade systems so far developed. These allow big polluters to obtain free permits, which they can then sell if they reduce their pollution, instead of making it very clear that all polluters must pay the public at large for permits to pollute. And unless the revenue from the sale or auction of pollution permits benefits all people equally, cap and trade systems are likely to have regressive income effects, i.e., affecting the poor the most adversely.

A very interesting proposal that would rectify these problems has been made by Peter Barnes (2001, 2006). Building on the idea of the Alaska Permanent Fund, which distributes oil wealth equally to all Alaska residents, Barnes proposed that a similar system be established to limit carbon dioxide emissions, or other kinds of pollutants. The basic idea is that all polluters pay into a fund in proportion to the amount of pollution they emit, while all residents of an area receive payments out of that fund on an equal per capita basis, as equal co-owners of the atmosphere or of the water or land resources of an area. Instead of monetary payments, the fund could also provide for public benefits, such as health care or education, but it is critical that at least half of the payments would be in cash. The cash part of the payment would allow people toward the lower end of the income spectrum to pay for the increased costs. In fact, because people would pay in proportion to their consumption but receive on an equal per capita basis, poor people, who consume less of everything, should receive a net benefit, while rich people would pay more than they received. It is this feature which would allow environmentally beneficial higher costs for pollution or resource degradation (which lead to higher costs of many consumer products) to have a socially progressive income redistribution effect. In fact, if they did the math, poor people would lobby to increase the fees paid to polluters, because they would receive a greater payment every month that would more than compensate for any increases in their expenditures! Furthermore, because a rather small number of people in any country enjoy disproportionately high incomes, far more than half the people earn less than the average income of a country (in other words, the median income is far lower than the average income). This means that far more than half the people of a country would experience a net benefit from this system, while at the same time environmentally destructive practices would become economically inefficient.

What makes this scheme even more interesting is that the rich and middle class people would have no cause to claim that their hard-earned money is being squandered to pay for the laziness of the poor. Everyone would be receiving unearned income, and if the poor received greater payments, so would everyone else. Given that there are large amounts of unearned income (rents), it makes much more sense to spread unearned income evenly among all the people rather than allow only a few to get all those benefits! Hence, making environmental resources such as clean air and clean water our collective property in a way that is truly enforceable and provides benefits for everyone would make it possible to reconcile environmental protection with social equity. This is in marked contrast with efforts to make environmental destruction expensive, which tend to have regressive impacts on income distribution. We’d have both abundant natural resources, and abundant livelihoods! " (http://www.icape.org/b5-Hoeschele.pdf)