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  Sierra Magazine
  July/August 2005
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Sierra Magazine
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The Common Good
An argument for asserting our rights to quiet, community, a drink of pure water, and a breath of fresh air.
by Jonathan Rowe

(page 2 of 3)

In recent decades, the expansion of the market into natural and social spaces has exceeded all previous bounds. What happened to the common fields of England is happening to virtually everything.

Water is a prime example of this trend. A gift of nature, water has traditionally been available to those who need it, whether through village wells or urban water systems. But today these systems are going private. Bottled water has become a $22 billion global business; it's getting hard even to find a water fountain. The International Monetary Fund and World Bank have pushed developing countries to privatize their water systems. This happened in Bolivia in 2001, and when Bechtel Corporation took over the waterworks in the town of Cochabamba, rates went up by more than 300 percent.

As with water, so too with the life it sustains. The gene pool has also been a kind of commons. Farmers could draw from it freely, saving seeds from harvest to use for the next crop. Now corporations are genetically engineering seeds and obtaining patents on the results. Farmers have to pay royalties when they plant them and can be sued for infringement if the patented genes are found in their crops — even if they blew over from a neighbor's property.

In the pool of knowledge, so much corporate money is pouring into university research labs that inquiry aims increasingly at corporate profit rather than the common good. The University of California at Berkeley dropped its division of biological pest control, in part because corporate funders want research on something with more profit potential, such as genetic modifications that can be patented.

What's happening to nature and knowledge is happening as well to the social commons of everyday life. Children once were weaned on a narrative commons of folklore and fairy tales. Their games were a kind of universal language. My wife grew up in a rural village in the Philippines, and on summer evenings she played hide-and-seek around a big mango tree — much as my friends and I did around an oak tree in a Boston suburb. Today, by contrast, children get stories contrived by corporations for the purpose of selling products, and their games increasingly are packaged and sold in stores.

They are subject to a nonstop barrage of advertising, even in their schools. Not since the days of child labor in factories has childhood been so enclosed by the market. In these and a multitude of other ways, we commoners are being banished from our own domain.

What used to be ours now belongs to corporations, what used to be free we now have to buy, and what's left of the commons of our air and water continue to serve as dumps. In this new setting, the concept of the commons is bigger than it was centuries ago because the market itself has become so much bigger and more aggressive. There was no need to think of childhood as a commons before corporations started to enclose it, no need to think of the gene pool as a commons before technology enabled corporations to manipulate it for their own ends.

If advocates of the commons in its many forms were to embrace the concept as a defining theme, the result could be a new and potent political force. It was just such a leap that launched the environmental movement half a century ago. Until then, hunters, birdwatchers, wilderness hikers, public-health officials, and the like did not routinely see themselves as allies. Then Carson wrote Silent Spring, and the many became one.

The time is ripe for the next big step. "In a world where everything is being privatized," write Maude Barlow and Tony Clarke in their book Blue Gold, "citizens must establish clear perimeters around those areas that are sacred to life or necessary for economic and social justice." They were writing specifically about water, but the same can be said of the many other realms of life humans have historically shared.

This would do more than broaden the environmental movement; it would also reinforce the link between environmental concerns and those of the poor. After all, it generally is not people of great wealth who fish in the Potomac River in Washington, D.C., play basketball on playgrounds in Los Angeles, or raise vegetables in community gardens on Manhattan's Lower East Side. The commons often means the most to those who have the least. This is especially true in developing countries, where oil, timber, and mining operations are destroying the subsistence commons.

Of course, there can be conflict between conservation efforts and traditional subsistence rights; the displacement of indigenous people to create wildlife preserves in Africa is a notable instance. But such conflicts pale beside the invasions and expropriations of the market. Seen through the lens of the commons, the concerns of environmentalists and the needs of the world's poor tend to be aligned.

The commons also opens up new avenues of legal redress. An example is the ancient doctrine of "public trust," which goes back to Roman times and holds basically that some property is common by its very nature. Government has a duty — a public trust — to maintain such property for the common good. The public trust applied originally to navigable waterways, tidelands, and coastal lands, as well as the air.

But in today's more complicated economy, courts have begun to apply it more broadly. Probably the most significant public-trust case involved Mono Lake, on the eastern edge of California's Sierra Nevada. Mono Lake provides food and habitat for a large number of nesting and migratory birds, and its scenic beauty attracts many visitors.

But Los Angeles was draining it through water diversions, and the Audubon Society challenged these as violations of the public trust. The California Supreme Court agreed and said that even existing water rights must yield to this superior claim.

The court recognized that the public trust includes environmental concerns — more precisely, that the services of nature are public benefits and "uses" under the terms of the trust. "Both the scenic beauty and the ecological values of Mono Lake are imperiled," the court noted, explaining the basis for its decision. Legal scholars disagree on the ultimate scope of the public-trust doctrine, in particular on how far it can extend from water, to which it has generally been attached. In recent years, for instance, plaintiffs have invoked it in attempts to stop the EPA from allowing the genetic splicing of a pesticide into plants and to block the National Park Service from granting an exclusive contract to a private corporation to patent biological tissues, soils, and sediments found in Yellowstone National Park. In both cases the plaintiffs prevailed, though on other grounds.

But courts generally have agreed that the assertion of the public trust is not a "taking" that requires compensation. The trust was inherent in the property all along and therefore represents a prior claim. In the Waiahole Ditch case in 2000, for example, the Hawaii Supreme Court ordered that water rights granted more than 90 years ago to a now- defunct sugar plantation revert to traditional uses. "Apart from any private rights that may exist in water," the court said, "there is, as there always has been, a superior public interest in this natural bounty."

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