Does Nature need public administration? Toward a theoretical reassessment of private property of private and contract in environmental public management[La nature a-t-elle besoin de l’administration ? Pour une réévaluation de la propriété privée et du contrat dans la gestion publique de l’environnement]

Are private property and entrepreneurial freedom detrimental to the environment? A bill recently presented to the French parliament holds that they are, and advocates for statutory environmental rights to be enshrined in the French Constitution. This paper takes the opposing view, dealing with the relationship between environment on one hand, private property and contractual freedom on another, and adopts both a conceptual and empirical standpoint: on conceptual grounds, the environment should be considered as a non-excludable – yet rival – good to be regulated. Regulation can be public, as argued by two economic schools of thought – Ecological Economics, Environmental Economics – on the basis of discretionary policy and polluter-payer principle, respectively (interventionist theories). Conversely, according to two other schools of thought – Economics of the Commons, Free Market Environmentalism – regulation can also be private in the form of common governance or property right (liberal theories). Each rationale has merits and limitations prone to illuminate public policy. In France, environmental policy is predominantly discretionary, in line with a key recommendation derived from Ecological Economics. Yet, the kind of government failures predicted by liberal theories apply to French policy, as shown by empirical evidence found in reports by the French Court of Auditors. Contrary to commonplace belief, public managers should be encouraged to enshrine private environmental regulation in public policy, rather than shying away from it on the grounds of a so-called market failure.