Natural Resources Law Outline

A.      Historical Background
a.       How are resources to be covered? (1-31)
                                                               i.      Overview
1.       What is meant by “natural resources”
a.       Paige v. Fairfield
                                                                                                                                       i.      Nothing to do with economic value
b.      Relationship; things we use
2.       Ecosystem management
a.       Idea that resources cannot be protected or managed in geographical or temporal vacuum
b.      General goal is to integrate ecological, economical, and social factors to provide long-term, sustained protection of the environment
3.       Stewardship – the idea that governments hold or manage some resources for the benefit of all the people, and the related idea that the present generation should share the earth’s resources with future generations
a.       In trust
4.       Conservation
a.       Endangered species act protects very narrow group
b.      National parks/forests, etc .protect larger areas, but are often not broad enough to encompass an entire ecosystem
                                                             ii.      Discussion problem: climate change and natural resources
1.       Massachusetts v. Environmental Protection Agency (2007)
a.       State oa Mass suing EPA for denial of rulemaking petition in connection to regulation of green-house gases; coast of mass is in danger due to possible issues of global warming; to protect state’s interest in land on coast, mass petitions EPA to regulate gas emissions from cars; EPA denied request; mass sued EPA for not enforcing the Clean Air Act
b.      In order to have standing to sue in federal court the petitioner must have injury in fact, causation, and redressability in the claim; these elements are easier to meet if you are a state rather than an individual
                                                                                                                                       i.      Prerequisites for any suit in fed court against an agency of the us gov
1. Standing to sue (statutory/constitutional
2. cause of action (statutory)
3. jurisdiction and venue (statutory)
4. applicable waiver of sovereign immunity
5. no available  administrative remedies
c.       Can state have standing to sue EPA for not enforcing Clean Air Act?
d.      Yes – injury, causation and redressability; state has a quasi-sovereign interest; causal connection that global warming cause of water rising; injury of losing coastal property; redressability – if EPA regulates emissions from cars, that will help global warming; standing is proper
e.      EPA does not have discretion in refusing to regulate a particular pollutant determined to cause harm w/in the standards specified by the CAA
2.       Notes
a.       A trust obligation: in many but not all cases, when we call things natural resources, we invoke an unspoken assumption aht someone (generally a government) has an obligation to manage them wisely fo the good of the whole people and future generations
                                                            iii.      What are natural resources
1.       In re tortorelli (2003)
a.       Adopts dictionary definition of “materials supplied by nature”
b.      Constitution grants states ownership fo stream & lake beds
c.       Equal footing doctrine grants ownership to newer states
                                                                                                                                       i.      1) New States admitted on an equal footing   (No. 1787
                                                                                                                                     ii.      2) submerged lands under navigable waters belong to states   (013)
                                                                                                                                    iii.      3) Owners of grants from us granted prior to statehood have no valid title if it wasn’t the U.S.’s to grant
                                                           iv.      The importance of place
1.       The memory place
a.       Special v. ordinary places
b.      Biodiversity
                                                                                                                                       i.      Biological diversity, or the shorter “biodiversity,” (bio-di-ver-si-ty) simply means the diversity, or variety, of plants and animals and other living things in a particular area or region. For instance, the species that inhabit Los Angeles are different from those in San Francisco, and desert plants and animals have different characteristics and needs than those in the mountains, even though some of the same species can be found in all of those areas.
                                                                                                                                     ii.      Biodiversity also means the number, or abundance of different species living within a particular region. Scientists sometimes refer to the biodiversity of an ecosystem, a natural area made up of a community of plants, animals, and other living things in a particular physical and chemical environment. 
                                                                                                                                    iii.      In practice, “biodiversity” suggests sustaining the diversity of species in each ecosystem as we plan human activities that affect the use of the land and natural resources. 
                                                                                                                                   iv.      Why is biodiversity important?
Everything that lives in an ecosystem is part of the web of life, including humans. Each species of vegetation and each creature has a place on the earth and plays a vital role in the circle of life. Plant, animal, and insect species interact and depend upon one another for what each offers, such as food, shelter, oxygen, and soil enrichment. 
                                                                                                                                     v.      Maintaining a wide diversity of species in each ecosystem is necessary to preserve the web of life that sustains all living things. In his 1992 best-seller, “The Diversity of Life,” famed Harvard University biologist Edward O. Wilson — known as the “father of biodiversity,” — said, “It is reckless to suppose that biodiversity can be diminished indefinitely without threatening humanity itself.”
                                                             v.      The trust notion
1.       Planetary trust: conservation and intergenerational equity
a.       All people under fiduciary obligation to future generations of planet b/c acknowledges explicitly that our interdependence as people imposes constraints on what communities may do as sovereign entities
2.       We do not hold the earth in trust
a.       No obvious settlor who has created and defined the purposes of a planetary trust; without settlor, no purpose or terms of trust define the scope of obligations of trustee
3.       Alec L. v. Jackson (2012)
a.       Decision dismissing claims by environmental group that would force government to impose futher greenhouse gas emissions reduction policies under a “public trust” theory. The NAM intervened in case in the trial court and helped obtain favorable ruling there
b.      Claiming 6 fed agencies violated fiduciary duties to preserve and protect atmosphere as a commonly shared public trust resource under public trust doctrine; public trust doctrine does not provide a federal cause of action; court therefore lacked subject matter jurisdiction
c.       Public trust doctrine
                                                                                                                                       i.      Natural resources are held in a trust for the benefit of humankind
                                                                                                                                     ii.      Trustee has a fiduciary duty to beneficiaries
                                                                                                                                    iii.      Inter-gen