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Natural Resources

Overview

Under review

U.S. natural resources law is a patchwork of unrelated statutes, unique to each resource, with the exception of the National Environmental Policy Act (NEPA). Some reflect a pioneer spirit, such as the laws regulating mineral mining, and some are more modern, such as laws regulating ocean fisheries. For the most part, the statutes governing federal lands, timber, coal, oil and gas, minerals, soil, and oceans share a common goal of efficiently and sustainably managing natural resources, but with varying degrees of success. This topic would not be complete without also considering natural resource damages and ecosystem services.

For a groundbreaking effort to integrate pollution control and natural resources law, see Cecilia Campbell-Mohn et al., “Sustainable Environmental Law: Integrating Natural Resource and Pollution Abatement Law from Resources to Recovery.”

Natural resources, in general, belong to the state or federal government unless found on private property or rights to them have been obtained from the government. States retain primary authority over natural resources within their borders, although federal statutes also apply to many resources, especially those found on federal land.The government’s role in managing and preserving natural resources for public use dates back to English common law and to Roman law before that. Under the public trust doctrine, some resources, including access to navigable waterways, fishing areas, and coastal areas, cannot be privately owned but must be held for the use and benefit of all. The concept of a protected public interest in natural resources is in tension with U.S. law’s general preference for well-defined property rights.

National Environmental Policy Act

Although no single statute applies to all natural resources, the National Environmental Policy Act (NEPA) applies to most government actions that might affect natural resource management. NEPA requires the federal government to take a “hard look” at the potential environmental impacts of proposed federal actions. Under NEPA the government must consider reasonable alternatives to projects that may lessen the environmental impacts. NEPA also provides opportunities for public comment during the NEPA review process. NEPA review is often required before decisions about natural resource use can be made. For example, NEPA review must be completed before a permit for mining on federal land can be issued, before a hiking trail can be built through federal lands, before federal funding in support of energy development projects can be awarded, before grazing permits on federal lands are issued, and before permits for offshore drilling or wind energy sites will be issued. 

For a discussion of the accomplishments and shortfalls of NEPA, listen to and download materials from the ELI seminar “The National Environmental Policy Act 40th Anniversary Celebration.”

For a general overview of the National Environmental Policy Act and its many provisions, see Nicholas Yost, “NEPA Deskbook, 4th ed.” For an examination of how NEPA can be used today beyond its mere procedural requirements, see James McElfish, “Rediscovering the National Environmental Policy Act: Back to the Future.” For a discussion of the many successes of NEPA, see “NEPA Success Stories: Celebrating 40 Years of Transparency and Open Government.”

Federal Land Policy and Management Act

The federal government owns nearly 650 million acres - almost 30 percent - of all U.S. land. As a result, management of federal lands has a significant impact on the overall environment. The Federal Land Policy and Management Act (FLPMA) was enacted in 1976 to establish a unified, comprehensive, and systematic approach to managing and preserving public lands in a way that protects “the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values.” FLPMA is administered by the Bureau of Land Management (BLM) within the Department of Interior.

Pursuant to FLPMA, BLM must establish a planning process for the management of public lands that accommodates multiple uses of the land and its resources and achieves sustained yield of natural resources. FLMPA aims to protect and preserve public lands in their natural condition to the extent possible, and to retain federal ownership of public lands unless it is in the national interest to dispose of them. Where it is appropriate to sell federal lands, FLPMA requires that fair market value be received for the lands.

For an interesting discussion of the coming together of public and private land management, see John Davidson, “The New Public Lands: Competing Models for Protecting Public Land Conservation Values on Privately Owned Lands.”

Timber and Forest Lands

The U.S. Forest Service, under authority from the Department of Agriculture, manages 193 million acres of  forest and grasslands within the National Forest System. The Forest Service’s mission is to “sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” This mission reflects the balance that the Forest Service must strike between allowing productive economic use and conservation of the lands that they manage. Of the 193 million acres they manage, roughly 49 million are open to timber extraction.

Under the National Forestry Management Act, all national forests are required to prepare land and resource management plans, which must be updated every 15 years. These plans essentially zone the forest, determining how the lands are to be managed and whether timber harvesting is appropriate. Plans are required to be prepared with public involvement, and are subject to the terms of the National Environmental Policy Act.  16 U.S.C. § 1604(d).

The Bureau of Land Management oversees 270 million acres of public land, 8 million of which are commercial forest land. These lands are governed by FLPMA, with management focused on sustainable yield of timber similar to US Forests.

For a discussion of the evolution of forest management plans, see Martin Nie, “Place-Based National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations.” For an interesting discussion of the intersection of NEPA and forest management, see Nathaniel Lawrence, “A Forest of Objections: The Effort to Drop NEPA Review for National Forest Management Act Plans.”

Coal

The U.S. has 35% of the world’s recoverable coal resources, making it the most abundant nonrenewable resource in the nation. Coal extraction is generally allocated through leasing on public lands, overseen by BLM, and by contract and conveyance on private lands. Federal coal is leased under the Mineral Leasing Act, and the Secretary of the Interior has discretion to offer federal coal tracts for lease at competitive auction from “time to time.”

A permit is required in order to mine, process and load coal under the Surface Mine Control and Reclamation Act (SMCRA) of 1977. SMCRA established the Office of Surface Mining Reclamation and Enforcement (OSMRE) to regulate coal mining activities. SMCRA uses the concept of cooperative federalism, under which  states are able to develop their own mining regulations to replace those found in SMCRA as long as SMCRA’s minimum standards are met. Today, most coal producing states have developed their own state laws and regulatory systems to address coal mining and handle the permitting process themselves

For a discussion of cooperative federalism under SMCRA, see Mark Squillace, “Cooperative Federalism under SMCRA: Is this Any Way to Run a Government?

Oil and Gas

As with most natural resource areas, states oversee the permitting and environmental impacts of most aspects of petroleum extraction from private lands. Petroleum is typically allocated from public lands to private companies through leasing. Before a lease can be issued, it must be consistent with the respective agency’s land-use plan. Both BLM and the Forest Service prepare land and resource management plans to determine which areas are suitable for extraction. Once a plan determines where petroleum exploration may be allowed, the agency must comply with NEPA’s environmental evaluation process before issuing a lease to explore and develop. The BLM may decline to issue a lease due to projected environmental impacts. Once planning and environmental assessment are completed, a property can be made available for leasing.

State laws govern the allocation of petroleum on state-owned lands, and many follow a similar leasing system as that required for extraction of petroleum on public lands.

Extraction of petroleum is prohibited in wilderness areas, most national parks, national monuments, national rivers, and areas of critical environmental concern. For exploration or drilling for petroleum in a wetland, the operator must obtain a special permit under the Clean Water Act.

Offshore petroleum extraction also requires planning and leasing, and the extraction fundamentals are essentially the same, however the statutory authority for offshore drilling focuses much more on the increased hazards of drilling in the sea.  The Outer Continental Shelf Lands Act governs offshore leasing and extraction, and requires the Secretary of the Interior “to obtain a proper balance between the potential for environmental damage, the potential for the discovery of oil and gas, and the potential for adverse impact on the coastal zone.”

For an interesting discussion of outer continental shelf legal issues, see Robin Kundis Craig, “Mobil Oil, Environmental Protection, and Contract Repudiation: It’s Time to Recognize the Public Trust in the Outer Continental Shelf.”

The relatively new technique of hydraulic fracturing has made many shale oil and gas deposits in the United States and abroad economically feasible for extraction. For a discussion of the environmental impacts from hydrological fracturing, listen to and download materials from the ELI seminars “Hydraulic Fracturing Risks and Opportunities” and  “Nuts and Bolts of Marcellus Shale Drilling and Fracking.” For more information on potential environmental and legal issues related to this extraction method, see Sy Gruza, “Will NYSDEC’s Proposed Regulations Prevent the Potential Significant Adverse Impacts of Fracking?” and Holli Brown, “The Attack on Frack: New York’s Moratorium on Hydraulic Fracturing and Where It Stands in the Threat of Takings.”

Minerals

The General Mining Law of 1872 codified the presumption that public lands are open to exploration by private individuals for all minerals covered by the Act; to remove this presumption requires an affirmative act of Congress. A prospector who finds a valuable mineral has first claim to it, so long as she or he diligently works the claim and continuously occupies the parcel under a doctrine known as pedis possessio. The claimant must then meet various other requirements, including designating the mineral deposit as lode (vein-like) or placer and maintaining at least $100 a year toward developing the claim, after which the government will convey the land.

A claimant has the option of buying the parcel, for $2.50 per acre on a placer or $5 per acre on a lode, which results in “patenting” the claim. When a claim is patented, it results in private ownership of the parcel. Since 1994, however, Congress has annually supported a moratorium on processing new patents, thus restricting private prospectors from obtaining ownership of public mining lands.

For a discussion of the effectiveness of the general mining law that has been in effect since 1872, see Mark Squillace, “The Enduring Vitality of the General Mining Law of 1872.”

Soil

Although often not thought of as a natural resource, soil is one of the most important natural resources. It serves as the basis for the crops upon which human society is built. At the federal level, the National Resources Conservation Service plays a significant role in ensuring the conservation of productive topsoil as well as other natural resources.

For a discussion of the importance of and steps for soil protection, see J. William Futrell, “New Action for Soil Protection.”

Ocean Fisheries

Economic statistics released by NOAA show that commercial and recreational fisheries in the U.S. contributed $72 billion to the Gross National Product and supported 1.4 million jobs in 2010. The average American consumes almost 16 pounds of seafood products annually, and the United States is the third largest consumer of seafood behind only China and Japan.

ELI has a long-running Ocean Seminar Series that is open to the public to watch and download materials from on topics including “Designing Effective and Enforceable Catch Share Systems,” “The Atlantic Bluefin Tuna Challenge: Sustaining a High-Value Migratory Species in a Highly Impacted Ocean,”  and “Fisheries Law Enforcement: Status and Challenges.”

For a discussion on the founding of national marine sanctuaries, see William Chandler, “The History and Evolution of the National Marine Sancturaries Act.”

To effectively manage fisheries and reduce overfishing, the harvesting of fishery resources must be sustainable. The Magnuson-Stevens Fishery Conservation Act is the basic federal authority covering ocean fisheries management, and was enacted to optimize U.S. utilization of coastal fisheries. The Magnuson-Stevens Act grants sovereign rights and fishery management authority over all fish within the exclusive economic zone, 200 nautical miles from the shore. Its purposes are:

  1. Acting to conserve fishery resources
  2. Supporting enforcement of international fishing agreements
  3. Promoting fishing in line with conservation principles
  4. Providing for the implementation of fishery management plans (FMPs) which achieve optimal yield
  5. Establishing Regional Fishery Management Councils to steward fishery resources through the preparation, monitoring, and revising of plans which (A) enable stake holders to participate in the administration of fisheries and (B) consider social and economic needs of states.
  6. Developing underutilized fisheries
  7. Protecting essential fish habitats.

To carry out these purposes, the National Marine Fisheries Service, which is delegated power from the Department of Commerce, appoints members to eight regional fishery councils. The councils are responsible for developing Fishery Management Plans (FMPs), which must specify the criteria that determine when a stock is overfished and what measures are needed to rebuild it. FMPs establish rules limiting the size and amount of fish that can be taken, where fishing can occur, and what fishing methods can be used. FMP provisions are implemented through a permitting system for commercial and recreational fishermen.  FMPs are enforced by NOAA’s Office of Law Enforcement in conjunction with the U.S. Coast Guard and state agencies; civil penalties are the primary vehicle to address violations.

For a discussion of fisheries management, see Richard Hildreth, “Achieving Fisheries Sustainability in the United States.

Natural Resource Damages

Natural resource damages is the notion that a party who causes harm to natural resources, like wildlife, marshes, or drinking water, should be held liable to restore the resource and pay reparations to people who may have relied on those resources.  For example, when the Exxon Valdez and the Deepwater Horizon spilled oil into the ocean, wildlife were killed; beaches were closed; fish were harmed; and fisheries closed. Natural resource damages allow the federal and state governments, as trustees of the resources, to recover money from those who caused the damage as reparation.

For an overview of natural resource damage assessment, see “Participating in Natural Resource Damage Assessment and Restoration.” For an extensive, expert discussion of natural resource damage assessment, see Valerie Lee, “Natural Resource Damage Assessment Deskbook: A Legal and Technical Analysis.” For a discussion of natural resource damages from the Deepwater Horizon spill, see Matthew Coglianese, “The Importance of Determining Potential Chronic Natural Resource Damages from the Deepwater Horizon Accident.”

Ecosystem Services

Ecosystem services are the suite of environmental goods and services essential to human well-being. These services cover a broad spectrum, ranging from flood control to climate regulation. Society often considers ecosystem services to be free public benefits and does not assign them a value that reflects their societal contribution. By identifying the economic and societal value of ecosystem services, we can protect critical services and compensate for those lost due to environmental impacts.

Listen to an ELI seminar on ecosystem services: “2007 Environmental Law Institute Miriam Hamilton Keare Policy Forum — Ecosystem Services: Is There a Business Case for Environmental Protection?” ELI has published numerous reports on ecosystem services.

 

For a general overview of ecosystem services law, read a transcript of the ELI seminar “Law and Policy for Ecosystem Services” or see Ira Feldman, “Ecosystem Services as a Framework for Law and Policy,” Michael Jeffrey, “The Development of Payments for Ecosystem Services in China: Cutting Through the Cloud of Confusion Over China’s Eco-Compensation,” and David Cooley, “Stacking Ecosystem Services: Risks and Solutions.”

Increasingly, policymakers are coming to use payment for ecosystem services as a tool for recognizing the value inherent in ecosystem services and helping economic systems to account for this value. This concept is closely related to the idea of pricing pollution—putting a price on carbon emissions, for example, to reflect the externality of climate change imposed on society in general when greenhouse gases are emitted at no cost to the emitter.

The World Bank and others have been pushing for the cost of developing natural resources to be reflected in national accounting, such as gross domestic product. One example is the recent World Bank report “Inclusive Green Growth: The Pathway to Sustainable Development.