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74 U. Colo. L. Rev. 487 (2003)
The Tragedy of Centralization: The Political Economics of American Natural Resource Federalism

handle is hein.journals/ucollr74 and id is 497 raw text is: THE TRAGEDY OF CENTRALIZATION: THE POLITICAL ECONOMICS OF AMERICAN NATURAL RESOURCE FEDERALISM JASON SCOTT JOHNSTON* INTRODUCTION This Article develops a formal model of the centralization of natural resource regulation and applies that model to ex- plain selected episodes in the history of American natural re- source regulation and to critique the Supreme Court's constitu- tional federalism doctrine. On my model, political pressure for centralized control over the development of public natural re- sources arises as a virtually inevitable consequence of economic development and geographic market integration. The model generates a number of positive or descriptive predictions as to when and how regulatory centralization will occur. It also re- veals the fundamental normative ambiguity of centralized con- trols over natural resource development. On the one hand, centralized regulation of natural resource development re- sponds to a tragedy of the commons1 that emerges because local jurisdictions are unable to internalize the full, global value of preserving open-access resources. On the other hand, centralization expressly aims to perpetuate the open-access management regime, thus ensuring continuing political conflict between development and preservation. Regulatory centraliza- tion may thus be just as tragic for natural resources as the re- gime of local control that it is designed to replace. * Robert G. Fuller, Jr. Professor of Public Law and Director, Program on Law and the Environment, University of Pennsylvania Law School. I am grateful for written comments on earlier versions of this Article to Sally Gordon, Dean Lueck, Kristin Madison, Jeff Rachlinski, Chris Sanchirico, and David Spence. I also benefited from comments by participants at the American Law and Econom- ics Association meetings at Yale Law School, and the University of Pennsylvania and Vanderbilt Legal Studies workshops. Todd Hettenbach provided exception- ally helpful research assistance. 1. See Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243 (1968).

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