Who Owns the Sky? Seventh Annual Lloyd K. Garrison Lecture on Environmental Law

The question Professor Torres poses in this article is: who owns currently unassigned natural resources? Professor Torres argues that for one such resource, the atmosphere, the public has an interest that must be accounted for in the construction of emission trading schemes. He argues that the doctrine of res communes is the foundation for the public trust interest held by the people. This commonly held interest requires that where the government has sanctioned the private trading of this asset, the government must account for the profits of such trades.

In short, it is not the government's to give away. Ancillary benefits associated with cleaner air do not offset the public's interest in the value of the resource, especially where the regulatory scheme has effectively precluded private action in defense of the resource. Moreover, economic research supports the conclusion that the efficiency gains made by using market mechanisms to reduce pollution also supports the capture by the government of scarcity rents created by the allocation of pollution rights. When the efficiency arguments are combined with arguments rooted in equity claims, some of the benefits of the market mechanisms may be diminished, but other values, like an aversion to gross inequities in the distribution of public resources, are optimized.

We have looked at the sky as though it were a common resource free of any substantial public interest in its value and quality. By doing so, we have permitted the government to transfer a substantial public resource to private hands free of charge. It is this failure that the public trust doctrine is designed to prevent.