Approach to Studying Natural Resources Law

1
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

2
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?

3
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?

4
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/e
  lk/elk.html

5
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?

6
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?

7
Cronon What is nature?

• Nature as naïve reality
• Its 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

8
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

9
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?

10
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

11
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?

12
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
• Parfits Theorem

13
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?

14
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 Leopolds Land Ethic?

15
Anthropocentricism Utilitarianism

• Genesis
• Be fruitful and multiply andhave 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

16
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
  dont 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

17
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? Doesnt 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?

18
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?

19
Intergenerational Equity

• The veil of ignorance experiment
• What kind of natural resource policy would you
  want if you didnt know when you would live?
• Edith Brown Weiss (3 principles)
• Conservation to preserve options
• Conservation of (or improvement of) earths
  condition
• Conservation of access to the resource legacy
• How well are we achieving these obligations?
• The problem posed by Derek Parfits 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

20
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 Lovelocks Gaia theory fit in the
  ethical framework?
• (8) Should we grant legal rights to inanimate
  objects?

21
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

22
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

23
Why are Resources Difficult to Manage?

• Scarcity
• Clash of values
• The commons problem
• Market failures
• Scientific uncertainty
• The problem of scale
• Institutional failures

24
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

25
 
 
26
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?

27
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

28
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

29
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
  doesnt 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?

30
Scientific Uncertainty

• Even if you wanted to, you cannot impose full
  costs (or assess full benefits) if you dont 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 abattle of experts
• How to deal with uncertainty
• The precautionary principle
• Consider the debate over climate change

31
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

32
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

33
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 dont 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

34
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?

35
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?

36
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?

37
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?

38
Delhi Sands Flower-loving Flyhttp//endangered.fw
s.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.

39
Q D Local Control

• What is the appropriate political scale for
  deciding whether to allow the hospital in the
  Delhi Sand flys 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?

40
Q D Public Choice

• If the public choice theorists are right, why do
  we have environmental laws at all?
• As Professor Revesz suggests, wont the legion of
  citizen breathers be overwhelmed by the
  concentrated industrial interests?

41
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

42
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

43
ANWR/NPRA Maphttp//geology.usgs.gov/connections/
blm/old_pages/blm_r_02.html
44
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?

45
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

46
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

47
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 cant 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

48
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

49
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

50
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

51
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

52
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 dont have a public image to
  protect
• Does not necessarily change behavior

53
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?

54
Q D Free Market Environmentalism

• Consider PERCs 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 PERCs 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?

55
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?