Natural capital resources crucial to combatting climate change are potentially subject to tragic overconsumption absent a requisite degree of vertical government regulation of resource appropriators and/or horizontal collective action among resource appropriators. In federal systems, these vertical and horizontal approaches may (or may not) take place in any one of four scales — local, state, national, and global — “nested” one within another. Prior research has described how natural capital in federal systems of government, though privatized and/or subject to government regulation, may nonetheless remain in a tragic plight due to the allocation of governance authority in federal systems — an allocation that may or may not legally entrench the commons dynamic. This Article builds on that research to present a clearer picture of the complexity of natural capital resource commons and does so by first deconstructing the nested commons scales and describing for the first time a number of legal authority and political action scenarios that may either resolve natural capital commons dilemmas or facilitate commons tragedies within the scales of a federal governance structure. The Article then details the “divergent” vertical regulatory and horizontal collective action approaches to managing climate-crucial natural capital within each scale. The Article concludes by pointing toward future scholarship exploring how these “divergent” approaches within scales can become “convergent” by taking into account both legal constraints that may exist on vertical regulation across scales or horizontal collective action within scales as well as geopolitical circumstances positively or negatively impacting political action within scales. This convergent approach encourages the proper management of natural capital resources by more fully accounting for the complexities of the federal governance commons.


64 Hastings L.J. 1273 (2013)


Federal government, Natural resources, Commons, Lexicon (Linguistics), Research

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