Ecosystem Management across Ownerships: the Potential for Collision with Antitrust Laws

Abstract:  Cross-boundary ecosystem management is increasingly being advocated to address large-scale ecological issues on forested landscapes. Such management requires information about the age, composition, and distribution of trees and other vegetation in addition to the ability to coordinate management over large areas. In the United States, the forest industry owns and manages a large quantity of biologically productive forest land, and these forests are crucial to the success of regional ecosystem planning. Antitrust laws, such as the Sherman Antitrust Act of 1890, limit the industry's ability to participate in regional ecosystem planning because they restrict the ability of competing firms to coordinate activities and share information. Because antitrust courts do not consider the intentions of violators, achieving conservation or other public policy goals, even when working with government agencies, is not a sufficient defense. Therefore, the real and perceived threat of antitrust litigation is a disincentive to the forest industry's participation in large-scale ecosystem management. Potential solutions to this problem include state immunity statutes and third-party data aggregation.