Open-Access Losses and Delay in the Assignment of Property Rights

Even though formal property rights are the theoretically optimal response to open access problems involving natural and environmental resources, they typically are adopted only after considerable waste has taken place. Instead, the usual response in local, national, and international settings is first to rely on uniform rules and standards as a means of constraining behavior. While providing some relief, uniform rules do not close the externality, and excessive exploitation along unregulated margins continues. As external costs and resource values rise, there finally is a resort to property rights of some type. However, the need for transfers and other concessions addressing distributional concerns affects the ability of rights arrangements to mitigate open-access losses. This Article outlines the reasons this pattern exists and presents three empirical examples—overfishing, over extraction of oil and gas, and excessive air pollution—to illustrate the main points.