In this final chapter, we explore different techniques of regulatory intervention, including regulatory alternatives, taxes, behavioral nudges and such, that can be profitably used to tackle the wicked problems described in the previous chapter, and other problems that may emerge and persist in the modern U.S.

Forty years ago, the Supreme Court created a new doctrine to protect property rights, called regulatory takings. That doctrine is an answer in search of a problem. The well-established law of eminent domain had developed over a century ago relatively clear guidance on how to distinguish between government actions that took someone’s property, thus requiring compensation, and government actions that merely regulated property and did not require compensation. Ignoring the long tradition in eminent domain, the Court has created an entirely new, completely incoherent, and fundamentally flawed constitutional jurisprudence that hampers the ability of governments to address the critical threats of climate change. But even within the Court’s incoherent regulatory takings doctrine, there are lessons for state and local governments on how to better prepare for disaster resilience and address the inequitable effects of climate change. This chapter explores the constitutional limitations on governments in their efforts to regulate to protect against climate disasters and identifies possible strategies for responding to climate events within the parameters of the Court’s incomprehensible property jurisprudence.

Henry L. Doherty was one of the primary proponents of unitization in the oil and gas industry the early 1900s. His goal was the prevention of waste, improvement in reservoir management, and serving the public interest in the conservation of a critical national resource. The key realization that unitization enabled was the treatment of a reservoir as a single mechanical unit, regardless of the division of its ownership. Cooperation between these ownership interests enabled joint operation of the common mechanical unit: the reservoir. This approach is similar to Elinor Ostrom’s approach, identified in her 1965 doctoral dissertation, and her work with common pool resources. In her work, she suggested that organizations formed to address groundwater issues in southern California resembled public entrepreneurs combining to form a more effective enterprise. As such, Doherty and Ostrom relied on similar foundations and theories but in different contexts.

Unitization agreements have several common components and principles that enable them to effectively govern collective resources. These agreements represent a governance system with several phases of development. Several key components work to separate the rights to extract from the right to a benefit, protecting private rights yet enabling collective governance. Private interests are protected as equity shares in the unitization agreement. A unit operator makes resource management decisions for the collectively held resource. As more information is gathered about resource conditions, private interests, represented as shares, are redetermined regularly to ensure accuracy and improve resource management over time. Thus, the methods of determining private shares in the unitization agreement are critical to the unit’s success.