Private Rights in Public Resources: The Role of Equity in
Market-Based Environmental Policies

by

Leigh Stafford Raymond

Doctor of Philosophy in Environmental Science, Policy, and
Management

University of California, Berkeley

Professor Sally K. Fairfax, Chair


This dissertation documents and explains the role of equity in
market-based environmental policies. The research focuses on
two important environmental laws: the Acid Rain Title of the
1990 Clean Air Act Amendments (CAAA), and the 1934 Taylor
Grazing Act (TGA). Both laws embraced a market-based
approach, creating limited quantities of strong, property-like
rights in public resources. The emission allowances and grazing
permits created by the two laws respectively were not fully
vested powers of ownership, but were designed to capture many
of the qualities and benefits of private property. This study uses
the term “refined property” to describe this limited form of legal
ownership and to link the two cases analytically.

The research reviews legislative records, administrative
documents, and interviews with key policy-makers to confirm
that much of the debate over both programs centered on the
equity of proposed initial allocations of refined property rights.
It then uses opposing property theories based on "intrinsic"
versus "instrumental" ideas of ownership to provide a theoretical
basis for the competing ideas of fairness in play. The data
confirm that despite different historical and ecological settings,
the equity arguments in both cases were quite similar. The data
also show that a similar process led to the final set of allocation
rules in each case, as decision-makers started with rules
supported by an intrinsic theory of property and then moved
towards the opposing instrumental view without abandoning the
intrinsic position. This process evokes the Hegelian theory of
property, in which society achieves a synthesis of opposing
property ideas in a similar manner.

The prominence of equity arguments and the Hegelian approach
to allocation in the two cases contradicts the traditional view
that the TGA and the CAAA simply "grandfathered" rights to
existing users. It shows that equity in fact plays a central role in
shaping market-based policies, and that scholars of public
policy would do well to study and inform that part of the
process. It also suggests that the initial allocation of rights in
such policies, while theoretically unrestricted, may in practice be
quite limited by the pervasive influence of the Hegelian
perspective.