Catalytic legal strategies that civil society and distinct communities of commoners, governments, and international intergovernmental bodies can pursue to validate, protect, and support ecological commons.
Perhaps the most significant challenge in advancing commons governance is a widespread indifference or hostility to most collectives, at least in Western societies. Accordingly, commoners must use ingenious innovations to make their commons legally cognizable and protected. Since legal regimes vary immensely worldwide, our proposals should be understood as general approaches that necessarily will have to be modified and refined for any given jurisdiction. Still, numerous legal and activist interventions could help to advance commons governance in select areas:
• Devising ingenious adaptations of private contract and property law is a potentially fruitful way to protect commons. The basic idea is to use conventional bodies of law that serve private property interests, but to invert their purposes to serve collective or public rather than individual or private interests alone. The most famous example may be the General Public License, or GPL, which copyright owners can attach to software to ensure that the code and any subsequent modifications of it will be forever accessible to anyone for use. This model has been applied to such diverse shared resources as data, scientific knowledge, bioengineered products, and copyrighted works, helping to create a commons of shareable material.
• Eco-minded trusts that serve the interests of indigenous peoples and poorer countries can emulate private-law workarounds to property and contract law to create new commons. For example, the Global Innovation Commons, a massive international database of lapsed patents assembled by the Virginia-based enterprise M-CAM, enables anyone to manufacture, modify, and share ecologically significant technologies. Companies and governments in marginalized developing countries, for example, could use these patent-free technologies to develop their own fuel-efficient vehicles and energy systems based on solar, tidal, and wind power.
• The “stakeholder trust” can be used to manage and lease ecological resources on behalf of commoners, with revenues being distributed directly to commoners. A well-known model is the Alaska Permanent Fund, which collects oil royalties from state lands on behalf of the state's households. Some activists have proposed an Earth Atmospheric Trust to achieve similar results from the auctioning of rights to emit carbon. And activists in the state of Vermont have proposed stakeholder trusts for common assets within the state, such as water, minerals, rocks, and wind.
• Some of the most innovative work in developing ecological commons (and knowledge commons that work in synergy with them) is emerging in local and regional circumstances. The reason is simple: the scale of such commons makes participation more feasible and the rewards more evident. Salient examples are being pioneered by the “re-localization movement” in the United States and the United Kingdom, and by the Transition Town movement in more than 300 communities worldwide, where local citizens seek to reinvent local economies and lifestyles in anticipation of the impending disruptions associated with climate change and peak oil.
• Federal and provincial governments have a role to play in supporting commons formation and expansion. Their commerce departments typically host conferences, assist small businesses, promote exports, and so on. Why not provide analogous support for commons? Governments could also help build translocal structures that could facilitate local and subnational commons, such as Community Supported Agriculture (CSA) initiatives and the Slow Food movement—thereby amplifying their impact.
• The public trust doctrine of environmental law can and should be expanded to apply to a far broader array of natural resources, including protection of Earth's atmosphere. (See Box 9–1.) It is an important way to ensure that governments act as conscientious trustees of our common ecological wealth. Using various digital networking technologies can render administrative processes more transparent, participatory, and accountable—or, indeed, managed as commons. For example, government wikis and “crowdsourcing” platforms can help enlist citizen-experts to participate in policy making and enforcement. “Participatory sensing” of water quality and other environmental factors can be decentralized to citizens with a stake in those resources. Networks of commoners whose work is mediated by online platforms can report reliably on their performance as stewards of resources through automatic online mechanisms.