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The Regulatory StateConstitutional Implications$
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Dawn Oliver, Tony Prosser, and Richard Rawlings

Print publication date: 2010

Print ISBN-13: 9780199593170

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199593170.001.0001

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Rationing the Use of Common Resources: Problems of Design and Constitutionality

Rationing the Use of Common Resources: Problems of Design and Constitutionality

(p.129) 7 Rationing the Use of Common Resources: Problems of Design and Constitutionality
The Regulatory State

Gerd Winter

Oxford University Press

Traditional regulation is conceived as limiting the individual use of a natural resource in order to preserve its minimum quality; for instance, the emission of pollutants is free if certain air quality thresholds are observed. The appropriate constitutional test is whether the implied encroachment on basic rights of enterprise and property is in the public interest and proportional to it. With the further decline and growing scarcity of natural resources new regulatory instruments have been tried, among which the capping of resource use and possibly making tradable use of rights is a particularly innovative instrument. Such rationing of resources reverses the traditional conception: the use of resources now becomes a privilege. This chapter is organized as follows. The first section exemplifies the core characteristics of quota systems in four policy fields — climate protection, fisheries, air pollution, and ozone layer protection — looking both on international and national levels. Distinguishing between a strong and a weak version of quota systems. The chapter then discusses questions of best design, asking how the common resource could be legally conceived, how overall quotas should be identified, what criteria should be used for the allocation of individual quotas, and whether trade in quotas should be made possible. The third section raises constitutional questions about socio-economic failures quota systems may run into.

Keywords:   resource regulation, natural resources, quota system, climate protection, fisheries, air pollution, ozone layer protection

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