The tragedy of the vital commons.

• Author: Pearl, M. Alexander

1. INTRODUCTION II. COMMONS SCHOLARSHIP FOUNDATION A. Hardin: Branding the Tragedy of the Commons B. Demsetz: More Property C. Ostrom: Cooperative Governance of Commons D. Rose: The New Law and Economics of Property E. Heller and the Anticommons F. Heller and Dagan: The Liberal Commons G. Fennell: Re-Examining Tragedies H. Informal Norms I. CPR Scholarship Conclusions III. The Vital Commons A. The Ogallala Aquifer B. Texas Water Resources and Law IV. The Ogallala Aquifer as Vital Commons A. Ogallala Aquifer and the Vital Commons Model 1. The Benefits of the CPR Are Internalized by Nearly Adi Members of a Given Massive Population 2. The Costs of the CPR's Depletion Are Externalized Among Nearly All Members of That Same Massive Population 3. Augmentation or Depletion of the CPR by One Party Affects the Ability to Use the CPR by Another Party Within the Same Massive Population 4. The CPR Itself is Irreplaceable and Necessary for Sustenance 5. Damage or Depletion of the CPR is Non-Remediable or Extremely Difficult to Correct 6. Summary B. Not Hardin and Not Heller C. Groundwater and Regulatory Takings in Texas D. Problem of Local Governmental Regulation E. Societal Expectations F. Commons and the Property Theory Debate G. Recommendation V. Conclusion "We should turn to history, along with self-reflection, to understand the stories that we once used to tell ourselves about property, as well as the ones we are telling ourselves now."

   --Carol Rose' (1)

1. INTRODUCTION

   Don Marble is an eighty-year-old cotton farmer in the South Plains region of Texas. (2) He started farming in 1951 and notes that throughout the course of his life, "[W]e've done some serious damage to our Ogallala Aquifer." (3) The Ogallala Aquifer is among the world's largest and most important groundwater aquifers. It stretches beneath eight states and more than 174,000 square miles. (4) Groundwater pumped from the Ogallala is responsible for irrigating nearly one third of the nation's cropland. (5) "The aquifer is the lifeblood of this place," says another West Texas farmer. (6) The Ogallala Aquifer is a commons resource--something that is used by everyone in the community. (7)

   Another Texas farmer cannot recall a time more ravaged by drought. Mr. Marble warns that, "If we don't do something to try to get some kind of control on how much water we're pumping, we may be looking for drinking water." (8) "It's that serious," Mr. Marble added. (9) Hard-nosed West Texas culture does not lend itself to hyperbole, especially when describing a difficult time. Whether you are talking about shaking off an injury on the football field in Austin, College Station, or Lubbock, or getting up before dawn to prepare for fieldwork, West Texans are resilient. However, resilience is no match for record-breaking drought. As of June 2014, more than seventy percent of the state is suffering extreme or exceptional drought. (10) This impacts groundwater supplies, like the Ogallala, because the aquifer relies upon precipitation for replenishment. Sam Stevens, another farmer, said that he went through multiple wells in 2012--they all dried up. (11) Most of the farming community, and the industries that exist to support it, wonder the same thing: what will become of us if the drought continues. (12)

   The Ogallala Aquifer is currently overdrafted. (13) The rate of recharge is already insufficient to meet the regional water demands; the sustained and significant drought has made matters much worse regarding recharge; the population continues to grow; and the demand for water by the irrigated agricultural sector and municipalities shows no sign of slowing. (14) In short, this is exactly the tragedy of the commons allegedly solved by implementation of private property rights. This Article explains why privatization has not only failed to render efficient allocation of a commons resource, but why privatization exacerbates destruction of the common resource.

   The commons has long fascinated legal scholars, economists, ecologists, sociologists, game theorists, political science scholars, and countless other academics of all stripes. (15) A renewed interest in the assessment of common pool resource (CPR) issues developed due to recent scholarly contributions and novel CPRs created by human conduct, such as patents in biomedical research. (16) This Article adds to the company of commons scholarship by closely examining a specific type of commons--groundwater aquifers. Fundamentally, this Article is inspired by the dire straits of West Texas and the High Plains: Water is scarce; communities teeter on the brink of death by drought; and everyone is praying for rain. (17) For these reasons, a new type of commons model is needed, the Vital Commons, along with a unique solution.

   This Article takes a normative approach by suggesting that we need better tools to understand the gravity of harm caused by overuse of certain vital resources. Indeed, the overuse of certain resources causes more damage than overuse of others and we need a way of understanding the difference. I propose a new model for understanding certain CPRs, which I call the Vital Commons. Overuse of a Vital Commons is like a slow-moving but known apocalypse, and it presents a categorically different challenge than other types of CPR problems. Groundwater depletion is an example. The current commons theory and solutions are unable to distinguish between the levels of importance of various CPRs within a given community. My model corrects that problem.

   Part I proceeds with a review of the founding scholars of CPR literature to provide the foundation for understanding groundwater aquifers as a type of commons. Part II provides an overview of the science and geology of groundwater aquifers. This Section provides context for understanding both groundwater and aquifers through statistics on consumption, availability, and trends in growing freshwater demands. In addition, I provide a detailed view of Texas groundwater consumption and law since it is an outlier among western states. Part III focuses on the most important, and largest, aquifer in the United States--the Ogallala Aquifer. (18) Here, the Vital Commons model is applied and assessed. This Section explains why the previous commons scholarship is unable to either describe the true nature of the Ogallala Aquifer's overuse or present a solution. I explain the need for urgent and drastic legal reform of groundwater regulation in Texas--and other states overlying the Ogallala Aquifer--in order to avoid a near-term devastating tragedy of a Vital Commons. Part IV concludes by acknowledging the role played by CPR theory within the larger debate in property theory among Progressivists and Information Theorists. Ultimately, I argue that, in the context of the Vital Commons, the Progressivists do not go nearly as far as is needed and that property law is unable to create efficient use and long-term stability of such resources.

2. COMMONS SCHOLARSHIP FOUNDATION

   In the popular reality show, Deadliest Catch, Alaskan crab fishermen catch various species of crab and--most of the time--interact with each other without violence. (19) Why? During the undergraduate experience of dorm living, the common room was pristine on day one and a cesspool by midsemester. Why? These are commons problems. While many of these ideas may have originated in thinkers not mentioned here, the following scholars are among the most innovative in the field. This Section proceeds in rough chronological order, although the work of many of the authors spans decades and overlaps with a number of peers also described.

   1. Hardin: Branding the Tragedy of the Commons

      While not the first to identify the concept, Garret Hardin's seminal piece is necessarily the starting point for commons scholarship. (20) The published work that struck the match for commons research is Garret Hardin's The Tragedy of the Commons. (21) An ecologist writing in the late 1960s, his work should be properly situated within the political, social, and legal forces operating at that time: The Cold War continued to rage, leftist sentiment in the United States was at its highest level since the Great Depression, and Congress was just beginning to consider enacting wide-ranging full-scale environmental laws. (22) Rachel Carson's trail-blazing work on environmental concerns, Silent Spring, preceded Hardin by six years. (23) In short, solutions to emerging environmental problems were in demand, but at the same time there was great concern that United States policy should reflect capitalist/private property principles in order to continue the war against the communist ideals of the U.S.S.R.

      While the piece is best known for coining the phrase, "the tragedy of the commons," Hardin's work is ultimately about the need for population controls. (24) His normative argument is based on the notion that resources are finite--be they a common pasture grazed by cattle owners in a community or the oceans and fish stock open to anyone. (25) Hardin states that we cannot maximize "the greatest good for the greatest number" because there are two variables within this axiom that cannot be maximized contemporaneously. (26) Furthermore, population will continue to grow while resources remain finite or lag behind in growth, thereby rendering the principle of maximizing the greatest good for the greatest number impossible. (27) This is what drove Hardin to the conclusion that "[r]uin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all." (28)

      Hardin's economic analysis is simple and appealing. Assume a common pasture used by all. Each rancher allows his cattle to graze on the pasture. (29) By adding an additional cow, the rancher internalizes the benefit of such an addition since she is able to sell the cow and recover the profit for herself. (30)...