natural resources law

Introduction

      complex body of national and local laws, having both statutory and common-law (common law) components, that regulate the use and protection of natural resources.

sovereignty

      Even when resources extend across national boundaries, or when resource exploitation (e.g., depleting a freshwater lake for irrigation and drinking water) has extraterritorial consequences, the governing law will generally be the national law of the area where the resource-affecting activity is taking place. Although calls for responsible global stewardship of natural resources have increased, efforts to control adverse effects upon the global commons tend to operate locally. Ultimately the resources remain subject to national control, although the resource-controlling states can in some circumstances be persuaded to regulate discrete forms of resource-affecting behaviour (e.g., overfishing or trade in endangered species and their by-products). See also conservation.

      The dominance of national laws can be traced to the territorial nature of sovereignty and to the established conception of sovereignty as entailing dominion over the resources within the sovereign's realm. Each country's body of natural resources law is shaped by myriad factors, not least of which are the country's history and conceptions of state and sovereignty. Thus, for example, natural resources law in many states is marked by complexities that have grown out of power struggles between regional and central governments.

      Statutes may be directed at government behaviour or at both private and government behaviour. Most direct regulation of purely private activity affecting natural resources is done at the state level. There is also a whole realm of state and federal environmental regulation that influences resource policy and extraction. In general, countries with clearly articulated federal systems, such as the United States, Canada, and Germany, have the most nuanced sets of natural resources laws. Each country has a distinctive division of central, regional, and even local authority to enact laws governing resource ownership, resource policy, and resource extraction. Depending on the precise contours of a country's legal system, laws of the federal government may limit or wholly preempt laws of the country's component states. For example, in the United States, issues of nuclear safety are expressly made the exclusive province of the national government, but the states hold a regulatory role in nonsafety issues, such as mining regulation or the siting of power plants.

states' rights

      Statutes regulating resources are generally described as either horizontal or vertical. Horizontal laws are broad, affecting all types of resources (e.g., the Endangered Species Act), whereas vertical laws apply only to subsets of the resource complex (e.g., the National Forest Management Act). Most horizontal natural resources laws focus on controlling some aspect of government behaviour. Typical of a horizontal natural resources law, the National Environmental Policy Act (NEPA) requires extensive planning and documentation of environmental impacts via the internationally renowned Environmental Impact Statement process, discussion of ways to mitigate adverse environmental impacts, and consideration of alternatives to the project as proposed. NEPA does not, however, require choosing the most environmentally favourable alternative but instead leaves the ultimate decision to the Environmental Protection Agency and the political process. In addition to regulating government behaviour, the Endangered Species Act regulates private activity by a separate provision that makes it a crime to “take” a listed species. Prohibited actions include killing a listed species and destroying critical habitat areas.

      Most vertical legislation erects a management regime, usually carried out under the direction of an administrative agency, which is given jurisdiction over defined areas. Management mandates may vary from open-ended promotion of multiple uses of the resource complex. One example of this is the Federal Land Policy and Management Act, pursuant to which the U.S. Department of Interior manages public lands for a mix of uses including mining, grazing, and various recreational activities. Other resource management laws are more directive, favouring a particular use (such as wilderness preservation or hydropower generation on rivers). Horizontal laws operate in a dynamic, sometimes uncomfortable harmony with vertical laws, because the horizontal laws tend to increase scrutiny of administrative agencies, in some cases checking their tendency to promote the resource development mission—e.g., timbering, mining, and power generation—that is implicit in vertical laws.

Public trust doctrine

      Operating as a further check on governmental resource management and subsequent private action is the public trust doctrine, which positions the government as a trustee of resources for the benefit of the general public. The public trust doctrine limits disposition of trust property and abdication of sovereignty over those resources. In Illinois Central Railroad Co. v. Illinois (1892), for example, the Supreme Court of the United States voided a legislative grant privatizing Chicago's commercial waterfront area on Lake Michigan (Michigan, Lake), holding that the legislation was in derogation of trust responsibilities to govern so as to ensure public benefit from that critical, traditionally available resource. Although some view the public trust doctrine as unique to modern jurisprudence, others say that its roots can be traced to the Roman law concept of res communes, a law of the commons that was traditionally applied to the seas, rivers, and foreshore areas.

Robert H. Abrams

Additional Reading

Works examining natural resources law include Charles F. Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West (1992); James Q. Wilson, Bureaucracy: What Government Agencies Do and Why They Do It (1989, reissued 2000); James Q. Wilson, “What Government Agencies Do…,” Public Administration Review (July 1992); Zygmunt J.B. Plater, Environmental Law and Policy: Nature, Law, and Society, 3rd ed. (2004); and Robert Fischman, Mark Squillace, and Jackson B. Battle, Environmental Decisionmaking, 3rd ed. (2000). Topical discussions include Zygmunt J.B. Plater, “Keynote Essay: A Modern Political Tribalism in Natural Resources Management,” The Public Land Law Review, 11:1–17 (Spring 1990); Richard J. Lazarus, “Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine,” Iowa Law Review, 71(3):631–716 (March 1986); and Joseph L. Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention,” Michigan Law Review, 68(3):471–566 (January 1970).

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