In Maine, no one is quite sure who owns the rockweed (the local seaweed) growing in the area between high tide and low tide. The land is private property owned by whoever owns the abutting beach. But there are many other resources (fish, crabs, etc.) that are public resources, free for anyone to fish under the public trust.
This legal uncertainty poses an environmental problem. More people and companies are trying to harvest the sea weed for fertilizer—sometimes over the objection of the landowner—risking a tragedy of the commons where harvest is unsustainable and the loss of rockweed reduces habitat for fish and other species. The Maine Supreme Court is currently considering the question in a case pitting property owners against harvesters. Arcane legal questions about the ancient public trust doctrine aside, the court’s decision—whether it favors property rights or open access—could have significant environmental impacts.
Property rights are a tried-and-true method of incentivizing responsible resource use. If rockweed is private property, the owners will have strong incentives to protect it. Since rockweed is a commercially valuable resource, they would have to balance the short-term gain from harvesting more today against the long-term loss of income when there is less or no rockweed in the future. People face such tradeoffs all the time for many private resources and they consistently make wise decisions, often increasing the resource and, through price signals, encouraging others to find new ways to make more with less.
Expanding public rights, like the public trust, at the expense of private property rights will undermine these incentives and discourage property owners from maintaining and growing resources. This is true on the coast and elsewhere. Recognizing more property rights on the coast, such as a right to “reef out,” would promote better stewardship by allowing the property owner to keep a small part of the public benefit she creates. Similarly, as PERC’s Reed Watson has explained, states that allow private property owners to control access to streams on their property give property owners much greater incentives to invest in stream restoration or fish habitat. These efforts create a clear win-win for property owners and the public.
The rockweed situation also highlights that property owners do not only protect the environment based on a cold calculus about what resources are worth today versus tomorrow. Secure property rights allow people to express their values through the use of their property, including expressing environmental values. Increasingly, environmentalists are expressing their values through property rights, by either buying ecologically significant property to set it aside or by paying property owners to change how they use their property to increase its environmental benefits.
The case that will soon be heard by the Maine Supreme Court was brought by several property owners who object to the commercial harvesting of rockweed on their property and sued a company who did so over their objections. The property owners do not appear to be objecting because they want to profit from this harvesting. They are members of a local environmental group who believes that cutting rockweed harms the ecosystem by reducing habitat for fish and other species and interfering with the ecosystem services that the plant provides. If these property owners get to control whether the rockweed on their property is harvested, it likely won’t be because of these environmental concerns.
The property owners may be wrong, of course. Whether some rockweed harvesting causes any significant environmental harm is uncertain. But the property owners have the best incentives to find out. If they’re wrong and some modest harvesting would have no environmental effect or would actually benefit the environment, they’ll bear the cost of their miscalculation—by forgoing the income they could have received from allowing harvesting. But, if they’re right, they’ll also reap the benefit of a healthier ecosystem, with more fish, crab, and other species on their property. Property rights not only gives people incentives to responsibly manage resources, it also gives them incentives to develop the information they need to do that.
Regulations, on the other hand, lack these incentives and risk a bureaucrat choosing the wrong one-size-fits-all answer. In case the Maine Supreme Court rules against the property owners, the state has developed a rockweed management plan. It would regulate how much of the plant could be harvested and who may harvest it. Acknowledging that no one is quite sure what the environmental consequences of the regulation’s approach will be, the plan also calls for harvesting to be forbidden from some areas.
One problem with this approach is that all of these decisions are made based on political factors by bureaucrats who can’t know everything they need to make these decisions correctly. Another is that regulation does not allow for the natural variation and experimentation that a free market with secure property rights would. Under regulation, harvesters will have incentives to harvest all they can within the limit. Being more cautious wouldn’t benefit them, because they don’t own the resource and won’t reap the benefits if that proves more sustainable.
It’s anyone’s guess how the Maine Supreme Court will resolve the open legal question. But, if it embraces property rights, the coastal environment will be better for it.
This post originally appeared on Free-cology. All opinions are Wood’s own and do not necessarily represent the views of the Pacific Legal Foundation.