Approach to Studying Natural Resources Law

• Chapter 1: Offers different perspectives that are essential to understanding the legal and policy issues

• Chapter 2: Provides the historical and legal context for understanding the issues

• Chapter 3: Provides background on the processes that are used to formulate law and policy

• Substantive chapters: Chapters 4 and 6 focus on preservation/conservation; Chapter 10 offers a more focused look at resource uses that are in conflict

Thinking About Natural Resources• What is “natural”?

– What do we mean by nature?…• Wildlife (a rabbit in our backyard?) • Forests (a second growth forest?)• Water (a river downstream from a dam?)• Parks (a trail in a national park or wilderness

area?)• Mining (reclaimed mine site?)

• Why does it matter to the study of natural resources law?– Is it about protecting or not protecting “pristine”

environments?– Or is it simply about protecting amenities that many

people want?

Consider Yellowstone National Park

• Loss of wolf population led to dramatic increase in elk population– Is this natural?– What kinds of problems might it cause?

• Does restoration of the wolf to the ecosystem

“solve” the problem by restoring the “natural” balance?

• Why did we (as a society) choose to restore the wolf to Yellowstone?

National Park Service • “Gray wolves, eliminated from the park by the 1930s,

are being restored, but not because park managers think the wolves will ‘control’ the number of elk. Instead, 15 North American wolf experts predicted that 100 wolves in Yellowstone would reduce the elk by less than 20%, 10 years after reintroduction. Computer modeling of population dynamics on the northern winter range predicts that 75 wolves would kill 1,000 elk per winter, but that elk would be able to maintain their populations under this level of predation, and with only a slight decrease in hunter harvest.” http://www.nps.gov/yell/nature/animals/elk/elk.html

The Role of Fire in Nature• “Natural” fires play an undeniably important role

– Note the evolution of national fire policy

• Are human-caused fires unnatural?– Are humans part of nature?– Were the Native Americans living in the 19th century part

of nature?

• Do fires “improve” nature as Chase claims? – Is it even “nature” anymore once it has been “improved”?

• Are “management” and “nature” fundamentally inconsistent?

Rocky Mountain Arsenal: Background

• Twenty-seven square miles outside Denver purchased by Army in 1942 and operated as a chemical weapons factory for many years.

• Placed on national priorities list of “Superfund” sites in July, 1987 (toxic pollution)– One of the most contaminated sites in the country

• In 1992, Congress passed the Rocky Mountain Arsenal National Wildlife Refuge Act of 1992

• Is it a “natural” environment?

Cronon: What is nature? Nature as naïve reality

– It’s just the way it is (a universal truth) Nature as moral imperative

– Nature as it should be (an untrammeled landscape) Nature as Eden

– Paradise Nature as artifice

– A construct of what we want it to be (an idyllic, pastoral landscape)

Nature as commodity– Nature as Disney World/Sea World

Nature as demonic other-- Nature as a feared wilderness

Nature as contested terrain-- Competing visions of nature

Review: The Nature of Natural

• We use the term “natural” rather loosely

• But it means different things to different people and the meaning that we attribute to it can affect law and policy– If we think of “natural” as a moral imperative, we

might be more inclined to oppose development of almost any kind

– If we think of it as an “artifice” then we will be more inclined to support any development that moves toward our sense of the way something should be (a pastoral landscape, perhaps)

– If we see natural as the “demonic other” we will probably support anything that tames wild lands

Who decides?• Who should decide what view of “nature”

prevails?

• Why does it matter?– Consider the problem of controlling elk populations

and reintroducing wolves into Yellowstone– How would the differing views of nature affect the

management decision --• For ANWR• For logging of old growth• For use of genetically modified organisms• For a new “natural” subdivision that might threaten the

California gnatcatcher

• Has nature “ended” as Bill McKibben suggests?

Tough Choices: Should We Protect or Use Natural Resources?

• Protection and use are most often in conflict – Consider wilderness, logging, mining, grazing,

recreation, wildlife habitat protection, water resource protection

• On what philosophical foundation should we make these decisions?– Biocentricism/ecocentricism– Anthropocentrism– Intergenerational Equity

Consider Coral Reef Mining• Is coral reef mining off the coast of Sri

Lanka right or wrong?

• Does it matter why the mining is occurring?

• What “philosophy” is driving these miners?

• What would you do to try to stop it?

Philosophical Foundations for Resource Policy

• Biocentricism– Arne Naess and Deep Ecology– Aldo Leopold and The Land Ethic– James Lovelock and Gaia Theory– Lynn White: Do people have ethical obligations to rocks?

• Anthropocentricism and Utilitarianism– Dominion and stewardship– William Baxter– George Perkins Marsh– Ecosystem Services

• Intergenerational Equity– Edith Brown Weiss– Parfit’s Theorem

Deep Ecology• Arne Naess; Devall & Sessions

– Equal, intrinsic value of all life– Humans may reduce richness and

diversity of life only to satisfy vital needs– Human interference is currently

“excessive”– Reduction in population is necessary for

human and non-human life to flourish

• Is civilization compatible with deep ecology?

The Land Ethic• How have our ethics evolved?

• What does this suggest about how they may evolve in the future?

• What is the Land Ethic?

• What is the “key log”?– Land use is not solely an economic problem

• When is a thing “right”?– When it tends to preserve the integrity, stability and beauty

of the biotic community

• Just how radical is Leopold’s Land Ethic?

Anthropocentricism & Utilitarianism

• Genesis– “Be fruitful and multiply and…have dominion … over

every living thing….”

• William Baxter– No interest in preserving penguins for their own sake

• Ecosystem Services

– What are they?– Why is there no market for these services?– How should we value them?

• Note the problems with benefit-cost analyses

Review: The Ethical Foundations of Natural Resource Law

• As with our understanding of the word “natural”, our ethics can greatly influence our approach to law and policy

• If we take a biocentric/holistic/ecocentric view then we are probably more inclined to support protecting wildlife and wild places for their own sake

• If we take an anthropocentric view we might still be inclined to support protecting wildlife and wild places, but only if they benefit people

• But keep in mind that there are extremes within each camp– Even if you look at things holistically, you don’t necessarily dismiss

a controlling role for humans – If you take a more human-centered view, you might still believe in a

strong stewardship role for humans that precludes harm to wildlife and wild places

Ecosystem Services• Where does consideration of these services fit in the ethical

spectrum?

• If fully quantified, could point toward stronger conservation

• But, how can we value these services?– What is the value of water purification services provided by

wetlands? Doesn’t it depend on wetland location?– Of bee pollination? – Of CO2 production by old growth forests?

• Note the problems with quantifying these and other amenity values in traditional benefit/cost analysis

• In preparing EISs, Forest Service prepares b/c analysis but for amenity values, it simply notes them without quantifying them– How might this skew decision?

Eco-Services and B/C Analysis • Benefit-cost analysis favors costs and benefits that are most

easily monetized– Revenues; direct costs

• B/C analysis disfavors costs and benefits (mostly benefits) that are not easily monetized– Amenity values; ecosystem services– Contingent valuation (willingness-to-pay values)– Hedonic pricing (notion that the value of a good is related to

its characteristics, or the services it provides)

• The problem of discounting– Exacerbates the problem of monetizing amenity values

• Is the existence value of wilderness worth more today than it will be tomorrow?

– Should it apply to human life?

Intergenerational Equity• The “veil of ignorance” experiment

– What kind of natural resource policy would you want if you didn’t know when you would live?

• Edith Brown Weiss (3 principles)– Conservation to preserve options– Conservation of (or improvement of) earth’s condition– Conservation of access to the resource legacy

• How well are we achieving these obligations?

• The problem posed by Derek Parfit’s Theorem– Every action of the present generation – good or bad -- impacts who is

born in the future– How can we be held accountable to future people who owe their very

existence to our actions– Mark Sagoff: Obligation not to the future but for the future

Questions and Discussion (24)

• (2). Consider the response of a deep ecologist; a Leopoldian; a utilitarian

• (4) Do people owe ethical obligations to rocks? What rights do we as a society have to deny the right to “destroy” private property?

• (7) Where does Lovelock’s Gaia theory fit in the ethical framework?

• (8) Should we grant legal rights to inanimate objects?

The Nature of Wilderness• What is it about wilderness that captivates people?

– 1963 Wilderness Act: speaks of areas “untrammeled by man”

• Note the evolution of American thought about wilderness – from an unforgiving, desolate, savage environment to an inspirational space in which we might find the “preservation of the world.”

• What is the economic value of wilderness?

• Note how our laws have tracked our views of wilderness– Settlement laws (Various Homestead Acts; General Mining Law;

Reclamation Act were all focused on gaining control over the land)

– Preservation laws began slowly, influenced by such notables as John Muir

– Our attitudes toward settlement and preservation have evolved

Conservation/Preservation Debate• Gifford Pinchot: “Wise use” philosophy

– Multiple use/sustained yield

• John Muir– Preservation for its own sake– The fight for Hetch Hetchy Valley

• Dinosaur National Monument fight– Compromise over Glen Canyon

• The dams of the Grand Canyon

• One of the most important contemporary issues– Endangered species protection– Roadless rule– ANWR

Why are Resources Difficult to Manage?

• Scarcity

• Clash of values

• The commons problem

• Market failures

• Scientific uncertainty

• The problem of scale

• Institutional failures

Scarcity of Essential Resources• The extent of the problem is almost always proportional to

the level of scarcity (Consider oil)

• Scarce resources usually cost more than they take to produce and are subject to far more government regulation– Windfall profits for oil companies

• Non-renewable resources (e.g., oil, gold, coal)– Must be managed for the long-term – Sometimes can be reused and recycled

• Renewable resources– Achieving optimum sustained yield (e.g., fish)– The special problem of ecosystem services (e.g., bees)

• Aesthetic resources

 

Resource Category Examples 

Primary Management Challenges

 

EXTRACTIVE

Non-renewable

Coal, Oil, Copper Provide incentives for further development; equitable allocation 

Renewable Fish, Timber, Soil, groundwater

Ensure sustainable yield; equitable allocation

 

ECOSYSTEM SERVICESPollination, Water purification, Flood control, Climate stability

Public goods – markets do not capture value of services; few explicit legal protections

 

SPIRITUAL / AESTHETICScenic vistas, Mount Denali, Yellowstone

Congestible goods – ensure use of, and equitable access to, at levels that don’t diminish value of experience  

Clash of Values• Almost all resource managers hear complaints

from a wide range of constituents including conservationists, preservationists, motorized and non-motorized recreationists, and a whole host of different types of developers.

• How can the manager effectively address these complaints?

• Is the role of the resource manager to give something to everyone? – In proportion to their influence? – In proportion to their economic impact? – How would you balance the competing interests?

Review• Ecosystem Services

– Important “economic” values that are difficult to quantify and often ignored in natural resource decisionmaking

• The Problem of “Discounting”– Discounting makes sense when you are attempting to assess

the future value of goods that are easily monetized– Discounting may not make sense for intangible assets such

as human life, wilderness, aesthetic resources

• The Conservation/Preservation Debate– Gifford Pinchot vs. John Muir– The debate continues today

• Why are resources difficult to manage?– Problems of scarcity, clash of values, the commons, market

failures, uncertainty, scale, institutional failures

The Commons• Resource use almost always poses problems

with managing common goods – air, water, public land, public access, aesthetic values

• If the demand for common resources exceeds the supply, destruction of the commons (and chaos) is inevitable. What options?– Auction rights– Sell rights to highest bidder– Regulate rights (equitable sharing, set priorities, etc.)

• Consider the Great Lakes– A common pool resource exploited by private parties

with little government interference

Market Failures (Market Forces)• Supply and demand often determine whether, when,

and where natural resources are developed

• Subsidies may distort demand (may be hidden)– Highway subsidies; Water development subsidies;

Agricultural and timber subsidies; Flood insurance

• Natural resource use often causes external costs that are not borne by the user (The market price doesn’t reflect the full cost of use)– Consider external costs associated with logging; mountain

biking; mining; grazing; wetlands development– Is there a way to capture these costs?

Scientific Uncertainty

• Even if you wanted to, you cannot impose full costs (or assess full benefits) if you don’t know what they are

• Uncertainty arises in a range of disciplines– E.g., economic, biologic, geologic uncertainty

• Science plays a huge role in resource law– When disputes cannot be resolved uncertainty often

leads to a”battle of experts”

• How to deal with uncertainty– The “precautionary principle”– Consider the debate over climate change

Questions and Discussion

• (3) Revisiting the Commons: What is the key to avoiding tragedy? Cooperation?

• (4) Ron Coase, The Problem of Social Cost– Transaction costs may lead to poor (inefficient) decisions.

Why? – Coase poses example of a polluting factory– Consider also a proposal to log an old growth forest in the

Pacific Northwest. The logging company might realize $1 million in profits from logging the Forest, but 100,001 members of the Sierra Club are willing to pay the logging company $10 each (a total of $1 million and ten dollars) to give up its logging rights. Assuming such a transaction is possible, how likely is it that it will occur?

– Consider also that future generations yet unborn may be willing to pay to preserve the old growth forest

Questions and Discussion

• (5) Did the bet between Simon and Erlich prove Simon right?– Is scarcity an artificial construct? – Sagoff argues that it is, even as he suggests that from an

ethical perspective, we consume too much when consumption becomes an end in itself and cuts our ties to nature

– Ehrlich disagrees– Consider oil

• (7) Where should policymakers focus their precaution? On the reef or on the community? On short-term, or long-term health?

• (8) Adaptive management– Resource managers must learn to constantly update

information and adapt their actions to the new data

The Problem of Scale• Biophysical scale

– High levels of uncertainty (Consider the pygmy owl)• http://www.co.pima.az.us/cmo/sdcp/sdcp2/PO/poMap1.html• When is a single species a good indicator of ecosystem

health? Management indicator species idea– Differing scales for different resources

• Political scale– Political boundaries don’t often match natural boundaries

• Consider the Great Lakes

– Upstream/downstream problem– Federalism issues

• Race to the bottom• Local vs. state vs. federal control

• Temporal scale– Resource management may have impacts far into the future

The Watershed Approach

• John Wesley Powell– Suggests that biophysical scale should match

political scale– Consider the problems confronting the Great Lakes

• Can they be solved at the State or Provincial levels? At the federal levels?

• Consider the slippery slope of “ecosystem management”– Should the ecosystem include cities and towns in

the area?– Should the focus be only on “natural” ecosystems?

The Quincy Library Group

• Collaborative decision-making– A good model for resource management?– Should we strive to manage resources (or

anything else) by consensus• Who gets to participate?

– Are the issues truly local?– Who speaks for future generations?

• Was congressional approval democratic or undemocratic?

Institutional Competence• The problem of agency capture: “The Bureau of Livestock & Mining”

• Public choice theory – Argues that whereas self-interest leads to benign results in the

marketplace, it corrupts political decisions by promoting "rent-seeking" by voters, bureaucrats, politicians, and recipients of public funds.

– Parties seeking special advantage from the state join together to promote favorable legislation. Rather than being particularly needy, these groups are likely to be those seeking a benefit (E.g., lower taxes on industry.)

– Often, fewer individuals with "concentrated" interests have more influence than the general public, which has more diffuse interests that are individually minor, but collectively substantial

– Agency officials seeking to maximize budgets, and thereby obtain greater power, larger salaries, and other perks are susceptible to “rent seeking” pressure

• Is the answer private ownership?

Mercury Pollution Hypo• Mercury is a toxic pollutant that can cause neurological

damage especially in young children

• Mercury pollution enters waterways primarily as a result of air pollution, much of it from coal-fired power plants

• Mercury levels in the Great Lakes are so high that pregnant women are warned not to eat ANY fish from the Great Lakes

• Known (but expensive) technologies exist to cut mercury emissions from power plants by 95% or more

• What would you predict will happen?

Delhi Sands Flower-loving Flyhttp://endangered.fws.gov/i/I0V.html

“The Delhi Sands flower-loving fly is a 1-inch long insect currently restricted to only 12 known populations in San Bernardino and Riverside counties, California. Unlike the common house fly, it feeds on nectar and mimics the pollinating behavior of such species as the hummingbird, butterfly, and honey bee. The orange-brown and black Delhi Sands flower-loving fly has dark brown oval spots on the upper surface of the abdomen.”

Q & D: Local Control• What is the appropriate political scale for deciding

whether to allow the hospital in the Delhi Sand fly’s habitat…– The federal government?– State government?– Local government?

• Does your view change if we are talking about logging in old growth forests?

• Which level is likely to be the most sensitive to economic concerns? To ecological concerns?

• Which level is most vulnerable to “rent seeking”?

Q & D: Public Choice

• If the public choice theorists are right, why do we have environmental laws at all?

• As Professor Revesz suggests, won’t the legion of “citizen breathers” be overwhelmed by the concentrated industrial interests?

Q & D: Ecosystem Service Districts

• Should we establish agencies to protect eco-services? Why or why not?

• If such agencies are established, what powers should they have? Which of these powers is likely to be the most controversial? – Generate public information about such services– Coordinate actions and the exchange of information

so that eco-services are better protected– Zoning power and land use control– Taxing power

Q & D: Sustainable Development• What do we mean by sustainable development?

– Consider the movement today to promote “sustainable development” in the mining industry

– What does it mean to have sustainable development in developing a non-renewable resource?

• Might poverty be the greatest environmental threat, as Gandhi claimed?– Consider the coral reef miners

• Sustainable development promotes progress while minimizing long-term impact on environmental and world resources

• Addresses the problem of temporal scale and intergenerational equity

ANWR/NPRA Maphttp://geology.usgs.gov/connections/blm/old_pages/blm_r_02.html

The Arctic National Wildlife Refuge• What role does uncertainty play in the

controversy over developing oil and gas here?

• Who should decide whether to allow development?

• Whose interests should be considered and what weight should they be given?

• What is the risk of “rent-seeking”?

• Why is the proposal to drill in ANWR so controversial?

Resource Management Tools• Prescriptive regulations

• Property rights

• Market Instruments – Payments and penalties – Tradable permits

• Public Disclosure

• Note that these are not necessarily mutually exclusive tools. Typically, some mix of these tools can be used to address a given problem

Prescriptive Regulations• “Command and control” regulation

– A phrase often used by opponents of such regulation because of the pejorative connotations

• Classic example is a complex regulatory statute and rule– Typically an agency will issue a permit in accordance with these

rules authorizing an activity subject to particular conditions, with sanctions for violations of the permit

• Pros– Allows agency to tailor regulations to address impacts of

particular use

• Cons– Increases need for agency officials who must interpret rules and

review, approve, and enforce the permits

Property Rights• Classic resource example is selling public lands and other property rights

for private management and use

• Pros– Economic incentive to manage the land for long-term economic value

• Cons– Most public lands are managed for many different uses, and the scale

of these uses varies considerably. To fairly accommodate all potential uses, such as wilderness recreation, logging, mining, and grazing, lands would have to be sold in large blocks severely limiting the class of buyers, and raising potential monopoly issues

– Corporate management structure may favor short-term gains over long-term value

– Amenity values for the land are highly dependent on the value of the lands to future users – a value that a potential buyer can’t easily capture. (How does the Sierra Club raise money from unborn wilderness supporters?)

– Concentrated interests are favored over diffuse interests due to high transaction costs facing the latter

Market Instruments: Taxes• Classic example is a per-unit use tax on grazing,

recreation, pollution, etc.

• Pros– Generates revenue as it limits use– Easily adjusted to reflect changing conditions

• Cons– Public opposition– Resource damage may occur before appropriate tax

levels are found– While tax levels are easily adjusted, changes in use and

environmental affects from these adjustments may be difficult to predict

Market Instruments: Public Subsidies• Classic example is a tax break on an environmentally-friendly

product

• Pros

– Allows government to target particular conduct

• Cons

– Costs money

– Public choice theory suggests that subsidies will not necessarily go to the most beneficial actions;

– Historically, subsidies have caused more environmental harm than good.

• Examples include below market grazing rates; below cost timber sales; no royalty mining operations

Market Instruments: Penalties• Classic example is the imposition of a fine for person who

violates a permit or other legal requirement

• Pros– Promotes compliance and assures that all regulated

parties are on a level playing field– If rules are clear, and violations easy to identify, can

be fairly simple to administer

• Cons– Can be complex and expensive to administer– Violations that require proof of “harm”, “environmental

degradation”, “unreasonable” behavior may require extensive evidentiary hearings

Market Instruments: Cap and Trade

• Classic example is capping total national levels of SO2 emissions and allowing nation-wide trading of SO2 rights

• Pros– Allows efficient allocation and adjustment of rights – Minimizes governmental role

• Cons– Initial allocation of rights may pose problems– Requires a marketplace with an adequate number of

market participants– Only works with fungible goods

• A tree is not a tree. The same tree in a wild area is worth more to an environmentalist and less to a logger than it is in a roaded area

Public Disclosure• Classic example is the Toxic Release Inventory

established under EPCRTKA http://www.epa.gov/tri/

• Pros– “Softer” approach to regulation– Good option when other forms of regulation are

impractical – May give company economic incentive to change (eco-

labeling)

• Cons– Less likely to control conduct of smaller companies that

don’t have a public image to protect – Does not necessarily change behavior

Q & D: The Red Snapper Fishery

• If over-fishing is occurring, how would you choose to address the problem?

• Compare – Prescriptive regulation– Property rights– Market instruments (cap and trade; fines; taxes)– Public disclosure

• Any difference in approach to commercial and recreational fisherman?

Q & D: Free Market Environmentalism• Consider PERC’s principles

• Should we put Yellowstone up for sale?– Why do people resist this idea?

• Should we force environmental groups to buy endangered species protection?

• Does PERC’s approach adequately account for the transaction costs incurred by those with diffuse interests (i.e., many people with modest interest in protecting endangered species)?

• Does it adequately account for the interests of future generations?

Q & D: Natural Resources and Property Rights

• Professor Cole –– “A property regime can only be relatively public or

private.”

– Private property is property “nominally owned by private individuals subject to various group or public interests.”

• Is Professor Cole correct? If so, what relevance does this have for natural resources law? What does it mean to “takings” law?