Conservation Through Collusion: Antitrust as an Obstacle to Marine Resource Conservation

Antitrust law aims to protect consumers from anti-competitive conduct that can restrict output and increase price. Conservation, on the other hand, often requires restrictions on output in order to maintain resource consumption at a sustainable level. Thus, while antitrust and environmental law both seek to advance the public interest, in the context of resource conservation they can conflict. Collective arrangements among private firms to reduce output or allocate market shares are inherently suspect, even if the intent or effect is to conserve an otherwise threatened ecological resource. This paper examines the tension between resource conservation and antitrust in the context of marine fisheries. Beginning in the 1930s, fishing unions and cooperatives have been prosecuted for setting prices or restricting output, even where such arrangements have served conservation purposes. By limiting the sorts of cooperative arrangements that fishers or other common pool resource users may adopt to limit access or utilization of the underlying resource, antitrust law may inhibit the development of more effective self-governing institutions