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I. Brief Summary
This case can be summarized as follows:
The U.S. government is the principal cause of the misuse and overuse of ocean resources, at least in U.S. waters. For the same reason it has failed in the past, government is unlikely to succeed in protecting ocean resources in the future. Ocean resources are best protected by people with ownership rights pursuing their own self-interest. Accordingly, the legislative and executive branches of government should adopt a "do nothing" policy towards the sea, leaving it to the court system to adjudicate disputes and evolve a system of property rights - much as the common law courts historically did on land. In contrast to the resolution, this approach would have the judicial branch of government:
Focus on people, not fish Define rights, not create regulations. Protect rights, not resources
By following these policies, more people will prosper, and we will have a more bountiful sea, as well.
Debating Strategy
This case does not defend the status quo. In that sense it does not argue against the concerns of the affirmative. Instead, it objects to the general solution called for in the resolution. It rejects the actor (the federal government) and the purpose of the actions (protect ocean resources).
As an alternative, this approach would have government get out of the way, making people the primary actors and pursuit of self-interest the primary purpose of their actions.
Under this approach, the federal and state judiciaries would play a major role (adjudicating disputes, defining rights, etc.). But in doing this, the goal of the judges is not to protect resources, but rather to address human concerns and human needs. Ironically, we are likely to have more protection of ocean resources as a result.
By analogy, most people who pursue happiness directly are often disappointed. By contrast, the happiest people tend to be people who did something they enjoyed. Happiness is more likely as a byproduct of some other goal than when it is the goal itself. Similarly, protection of ocean resources is more likely to occur if it is a byproduct of some other goal than if protection is the goal.
The negative is grounded in "new resource economics," or, what is sometimes called "free market environmentalism."(see the backgrounder )
II. General Case
In the world today there are more than six billion people but only one U.S. government. The self-interest of these six billion people is to get the most of whatever they desire at the least cost --- which includes marine resources both directly and indirectly through the goods and services they buy. Under the present management regime, this leads to overuse. To a limited extent, the U.S. government is trying to prevent them from doing that.
The Affirmative Team wants the government to do more to protect ocean resources from the six billion people. We believe this is a mistake. Instead, we should find ways to empower the six billion people - so that conservation of ocean resources is in their self-interest.
1. Governments are the Principal Cause of the Decline of Ocean Resources.
For most of human history, marine resources in the worlds' oceans and seas have been exploited under a system of anarchy. (See the backgrounder under Anarchy.) This is the system that most of the worlds' marine resources exist under even today. And most of the time, in most places, this is probably the best system.
Anarchy means anything goes. You can fish as much as you want to fish and the government is not interfering one way or the other. In such a system, fishermen are guided by profit and loss.
That means that when fish are plentiful and easy to catch, fishing will be profitable and there will be more of it. But if fish become scarce, the returns from fishing will fall and there will be less of it. Fishermen don't fish in overfished waters because they lose money when they do.
Up through the 1960s, this was basically the way our fisheries operated. At that time, a number of government and private studies found that the worlds marine resources were underutilized. Backed by these studies, the government concluded that ocean resources in US waters were underfished. As a result, the federal government began to subsidize fishing in ways that encouraged the type of overfishing that never would have occurred under anarchy. The subsidies included:
Below market loans for fishermen who bought bigger boats and state-of-the-art equipment. Tax breaks for investments in new equipment. Grants to fishing harbors to improve and expand the number of mooring spaces, and to purchase the latest equipment for fish warehouses. Grants and below market loans for fish processors for larger, newer plants.
The results of these programs were more fisherman chasing fewer fish. In the late 1970s and early 1980s, there was a spectacular expansion in the U.S. fishing fleet. Of all the fishing vessels built in the past 50 years, more than half were built during the decade from 1973 to 1984.
Worldwide, the story was much the same. Throughout the 1980s, while the number of fish declined, government subsidies caused the world's fishing fleet to more than triple. The Chinese fleet alone more than quadrupled between 1970 and 1990. By one estimate, worldwide fishing subsidies amount to between $14 billion and $20 billion dollars a year. One expert on the world's fisheries, Carl Safina, estimates when fishing subsidies are combined with other wasteful actions in response to unwise regulations, the fishing industry spends $124 billion a year to catch $70 billion worth of fish. That means that the world is spending approximately $5 for every $3 worth of fish that are caught.
We would have been much better off if the government had done nothing over the past three decades. Left on its own, no private company or industry could continue to operate with such high losses.
In ancient times, Emperor Nero reportedly fiddled while Rome burned. The U.S. government, rather than fiddling as U.S. fish stocks were overharvested, actively poured gasoline on the fire by preventing a normal contraction of the industry.
Other government policies are also contributing to the decline of marine resources:
Farming subsidies, in the form of direct price supports, tariffs on crop imports, and subsidized flood insurance encourage farmers to develop marginal lands along streams and in wetlands and to increase pesticide and herbicide use to maximize crop production. Government subsidized hurricane insurance and direct development subsidies have encourage increased development along the coasts.
U.S. farm policies have resulted in farm runoff becoming a primary source of coastal bay and estuary pollution resulting in dangerous algae blooms and low oxygen conditions that create vast "dead spots" in the ocean where little to no sealife exists. And government coastal development subsidies have harmed marine resources by both increasing the sources of pollution (run-off from lawns, pavement and from leaking water craft) and destroying coastal wetlands which would normally filter pollution. Coastal development also poses a hazard to marine mammals since increased coastal development results in more boaters. For some marine mammals, like the manitee, boat collisions have become a serious threat to their survival.
2. For the Reasons It Has Failed in the Past, Government is Unlikely to Succeed in the Future.
Government has tried repeatedly to reverse the decline in the fisheries. There are dozens of federal and state agencies administering more than 140 different laws regulating the use of marine resources in U.S. coastal waters. These efforts have failed. And the reason they have failed is because government cannot in principle solve this problem.
The reason is that government is itself a commons. People who support bad policies bear only a small part of the costs of those policies. Most of the costs are borne by others. On the other hand, people who support good policies reap only a small portion of the benefits. As a result, the pursuit of political self-interest all too often results in environmental harm (see the backgrounder on the Political Commons):
Fishing interests seek fishing subsidies. Coastal towns and cities seek their special subsidies. Pesticides and agricultural runoff pollutants reflect the power of the farming industry. Federal hurricane insurance that encourages the over-development of coastal areas reflect the political power of developers and homeowners. Subsidies to shipping companies that encourages too many ocean vessels and too much pollution, reflects the efforts of yet another economic interest.
This sea of special interests is not going to go away.
3. Ocean Resources are Best Protected by People with Rights Pursuing Their Own Self-Interests. Rather than empowering new agencies or instituting new regulations, the government should get out of the way and allow the earths's six billion people to develop rights in marine resources.
Problems similar to the ones we are having in the sea once existed on land. Where land was treated as common property, it too was overused and abused. Many societies solved this problem with three institutions:
In societies where property rights evolved, land management improved.
When I drive through my neighborhood, I do not see people dumping trash in their neighbor's yards. Nor do I see them littering their neighbor's yards with hazardous waste or other pollutants. Why is that? It is because there is an army of environmental police who survey the neighborhood around the clock? No. It is because every yard in my neighborhood has an owner. Because each plot has an owner, it has a protector and a defender. People who have rights to property have an economic self-interest in protecting those rights - by monitoring their neighbor's behavior, hiring private security guards, installing alarms, reporting violations to the police on those rare occasions where more serious defensive actions are necessary, and by using the courts if needed to enjoin trespassers and seek tort damages against them.
Search through the U.S. Constitution and you will not find a single instance where maximizing the value of land is listed as a goal of the federal government. Maximizing the value of land is also not a goal listed in any state constitution. Instead, these documents talk about rights, including the right to own property. They stress that the goal of government is to protect those rights.
Land resources are protected and their value is enhanced in this county not because that is a goal of government, but as a by product of another goal: protection of human rights. And land is by and large more valuable in the United States than elsewhere around the world because we do a better job than most other countries of protecting those rights.
4. Accordingly Government Should Do Nothing, Allowing People, Through the Court System to Create Property Rights to Ocean Resources and Defend Those Rights.
Individuals are largely prohibited from acquiring rights to ocean resources and acting to protect these rights. Under the current system, for example, if an individual submerges an oil rig and creates a coral reef, he is not allowed to reap the economic benefits of that reef - by:
Charging visitors for snorkeling, scuba diving and fishing privileges; Preventing human activities that are harmful to the reef; Pressing claims against ocean liners and oil tankers that pollute waters around the reef.
There a few exceptions to the rule. In a few places around the world people have acquired rights to ocean resources. Almost without exception, the creation of these rights has been beneficial to humans and to the ocean as well.
In Iceland, after decades of unsuccessful attempts to restrict fishing through quotas, the government introduced property rights in the country's herring fisheries. As a result, the number of vessels fishing for herring fell from 200 in 1980 to 30 by 1995, catches. In recent years, catches have fallen to sustainable levels, even as the value of catches has risen dramatically. In New Zealand, which introduced property rights in 1986, stocks of blue fin tuna, abalone, and lobster have recovered after decades of decline. In Australia, an oversized fishing fleet led to the near-collapse of blue fin tuna fisheries. Since the introduction of property rights in 1989, annual catches have fallen by 60 percent, the average income of fishermen has increased dramatically, and the nation's tuna fisheries have become the most profitable in the Pacific. In Washington State, oyster farmers who own the tidelands have sustained oyster stocks for well over a century, even as publicly-owned oyster beds in Mississippi have become depleted.
Altogether, since the early 1980s, people have acquired limited property rights in some or all marine resource stocks in 17 countries covering more than 50 species. In each case, the condition of the stocks and the profits of the fishers have improved significantly.
We should encourage this trend in U.S. coastal waters by following three steps. First, the government should end subsidies and other programs that encourage overfishing, overfarming and overdevelopment on the coasts. Second, the government should end attempts to regulate the use of the ocean by private individuals, other than clear cases of causing physical harm. Third, with the executive and legislative branches of government out of the way, the courts will be free to hear cases involving disputes over the use of ocean resources.
These three steps would allow fishing and recreational groupand other private parties to establish property rights in the resources that they can then defend against polluters and other unwelcome exploiters. In time, a variety of property rights regimes will arise unique to the conditions of the resources (i.e., the system of rights that develops for migratory species may be different from the ones that develop for stationary marine resources).
Property rights in the ocean do not have to be defined all at once. They can evolve over time, where they pose significant advantages over the system of anarchy - just as they did on land (see the backgrounder on "Common Law.") As courts rule on disputes between rights claimants, boundaries to property rights will be developed and defined. Over time, multiple, legally consistent rulings will establish precedent, giving rights claimants certainty in their possessions.
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