Select Page

Natural Resources Law
University of Connecticut School of Law
Rooney, Christopher J.

I. What is a Natural Resource
1. The Nature of Nature
i. What exactly is nature? How do we define it? Is nature anything that is untouched by human influence? Or anything unrefined?
ii. Anytime we try to create something “natural” we ultimately end up destroying what would have been present if we did not try to “manage” nature. Nature cannot be managed, it cannot be mimicked, it can only be observed.
2. Why Should We Protect or Use “Natural Resources?
i. Biocentrism
1. Deep Ecology
a. Builds off the idea of Kinship with nature. A combination of self-realization and biocentric equality.
b. All things in the biosphere have and equal right to live and blossom. Everything in the biosphere is of the same intrinsic worth.
c. See page 13 of the Casebook for the 6 core Principles.
2. The Land Ethic
a. Wants to change the role of homo sapiens from conqueror of the lands to being a plain member of the land community. Requires respect for other member of the “community”, earth, water, animals, plants, etc.
b. Attempts to give all living and non-living things intrinsic value that is not tied to the “economy of preservation.” The economic parts of the biotic clock cannot operate without the un-economic parts.
ii. Anthropocentrism
1. Utilitarianism
a. Decisions are made for the greater social welfare. This social welfare is human-centered and does not take into account other species.
b. Under a utilitarian approach, conservation efforts are only taken if they will enhance the livelihood of men. Animals should only be saved if they will somehow make human existence more pleasant.
2. Ecosystem Services: Use and non-use values
a. Direct Market Uses – Growing cranberries in wetlands
b. Direct non-market uses – hiking and sport fishing
c. Existence Value – knowing something exists such as national parks, even if we never visit them
d. Option Value – knowing that you could go visit a park because it exists.
e. Bequest Value – Knowing that your children will be able to enjoy something.
f. Indirect non-market uses – “ecosystem services” – pollination, water purification, maintenance of biodiversity, etc.
iii. Intergenerational Equity
1. Ask yourself: “what kind of society or environment would you want to live in if you have no idea what you would be or when you would live.”
a. Acknowledges that we have obligations to future generation
b. Development that meets the needs of the current generation without putting future generations at a severe disadvantage.
iv. Why Do Values Matter?
1. The nature of laws themselves. Are we seeking to protect ALL species? Or just those ones we’ve ravaged so far?
2. Understanding the values divide helps us to realize why do many management issues seem impossible. Different sets of values are sometimes impossible to mesh, making it imposable to reach a compromise.
II. Why are Resources Hard to Protect
1. Scarcity
i. If resources weren’t scarce there would be no need to manage them.
ii. Non-renewable resources exist in finite quantities and require much more intensive management. Using more not means there are less available in the future.
iii. Renewable resources, although existing in finite qualities at any given point in time can be made to last “forever” if they are properly managed. These resources include trees, fish, animals, etc.
2. Clash of Values
i. Resource managers must be able to create compromises to please the greatest number of people. Wolves are a good example. Management of wolves must balance the rights of farmers to not have their sheep eaten while also considering the rights of the wolves themselves and those concerned with conservation of the species.
3. Problem of the Commons
i. Almost all actors in the market are seeking the highest value of their goods while achieving the lowest cost. The problem of the commons leads to a race to the bottom when one of a group of individuals abuse the rights of others for their own gain.
ii. Immediate and personal incentives work against the long-term preservation goals.
4. Market Forces and Failures
i. Id market prices do not accurately reflect the cost of natural resources to the human environment; there is less incentive to preserve them. The benefits of preservation can be shared by everyone, but owned by no one.
ii. Even when societies charge for externalities imposed on the environment, they often fail to take into account all of the externalities caused by a given action and the price of the resource remains artificially low.
5. Scientific Uncertainty
i. Uncertainty over the size and impact of environmental problems result in more difficult policymaking. Often people are unwilling to spend money now if they are unsure of the extent of the problem or if they can actually solve it.
ii. Environmental problems often have more than one cause. Can solving for one cause really help to fix the problem?
iii. Tow possible solutions:
1. Develop better information – the majority of environmental protection statutes require extensive research to be done on the environmental impact of certain actions.
2. Precautionary Principle – shifts the burden of proof from those who would normally be challenging the activity being carried out to those who wish to continue the activity.
6. Scale
i. Biophysical Scale
1. The earth is huge. How can we best estimate the number of migratory animals that are left in the biosphere if we don’t always know where they are?
2. Biospheres more often than not overlap.
ii. Political Scale
1. Natural boundaries rarely ever trace political boundaries. The habitat of some animals may encompass multiple states, nations or even continents. In order to fully protect a species, multiple levels of government must be involved and committed to preservation.
2. Who has management authority over a resource? Often local governments have been active in the management of a resource that their constituents depend on when the federal government comes in and regulates. It is true that more than the locals have an interest in the resource, but if they are managing it properly, should

ay that does not impair the ability of another riparian owner from also making a reasonable use of the water.
b. Under reasonable use, a riparian could divert water from a stream, but so long as their diversion was reasonable and did not destroy the rights of downstream users, it would be allowed.
c. How is it administered?
i. Domestic use of water (household) trumps ALL other uses
ii. Recreation, fishing, irrigation, etc. are all viewed on an equal footing to each other.
iii. If a plaintiff’s rights are destroyed, the defendant must yield. If the P’s rights are simply impaired, and the impairment is reasonable it will be allowed to continue. If the impairment is unreasonable, an injunction will issue.
d. Nine factors of reasonableness: R. Torts 2d § 850A
i. Purpose of the use
ii. Suitability of the use to the watercourse
iii. Economic value of the use
iv. Social value of the use
v. Extent and amount of harm caused by the use
vi. Practicality of avoiding harm by adjusting the use
vii. Practicality of adjusting the use by each proprietor
viii. Protection of existing values of water uses, land, investments and enterprises
ix. The justice of requiring the user causing the harm to bear the loss.
3. Prescriptive Easements
a. An upstream user can acquire a prescriptive easement on the riparian rights of downstream users if their use is:
i. Open an notorious (obvious to anyone)
ii. Actual and Continuous (uninterrupted during the required time)
iii. Adverse to the rights of the other property owners
iv. Hostile (in opposition to the claim of another. Can be accidental).
v. Continuous for the statutorily defined time period.
b. See Waterbury v. Washington – because the damn was open and notorious, the city had gained a prescriptive easement over the riparian rights of downstream users.
4. Eastern Permits System
a. Many states in the East have been moving towards a western permit style water management scheme. Under the scheme the riparian rights are not entirely stripped, but permits are required for anything more than small diversions of water from a watercourse. The cities right to divert water by easement was for the amount that was usual and customary between the parties.
b. Permits are issued based on whether:
i. The withdrawal would exceed the safe yield of the water course
ii. It is consistent with any applicable allocation plan
iii. It is reasonable