Professor Klein – Natural Resources –Fall 2015
What are Natural Resources?
NR are things that humans can’t or didn’t make
Doesn’t have to have economic value (Alec L)
Trust Notion – Planetary Trust
Settlor creates trust and defines terms
Trustee has fiduciary duty to manage trust
Beneficiaries reap benefits of the trust
Corpus is the “stuff” of the trust
There must be a purpose of the trust
Brown Weiss (p. 18): trust is a good metaphor for NR
Purpose of trust is to conserve/preserve for future generations
Gaba (p. 20): trust is NOT a good metaphor
There is no settlor of trust hung up on analytical aspect
Alternative to trust theory inter-generational equity
Among generations, we owe equity/fairness to future generations
Conservation v. Preservation:
Conservation (utilitarianism) = managing resources for use
Ensuring sustainable use
Using science/management to ensure use for future
How much protection
BLM (bureau of land management) natural forests
Preservation = keep nature in wild state and NOT use it
What is the baseline? When was the natural state?
NWR (national wildlife reservations)national parks
Resilience theory = humans must learn to be nimble and to respond to changing conditions
the law must define resilience
In re Tortorelli (10): defining NR as things supplied by nature that have value (not necessarily economic)
Facts: T charged with theft for salvaging trees from the bottom of Lake WA (belongs to state)
Hold: trees are supplied by nature, so there is “no logical reason to exclude submerged trees from def of NR à property of state
Equal footing doctrine = state takes title to submerged lands
Submerged lands act = state takes title to NR found in navigable waters
Mass v. EPA (3): finding that courts should give special solicitude to states as plaintiffs
Facts: MA filed petition under APA because EPA’s failure to regulate greenhouse gas emissions was arbitrary and capricious
MA claimed that failure to regulate caused state to lose coastal land
Hold: the atmosphere is a NR à greenhouse gasses are air pollutants under CAA à EPA has authority to regulate their emissions
MA had standing to bring suit
Elements of standing:
Injury in fact (particularized)
Potential loss of economic interest may be enough
Causation
Fairly traceable
Redressability
(1–3 are constitutional req) see Sierra Club v. Morton
Zone of interest of relevant state (prudential requirement)
Court gives special solicitude to state as plaintiff
FEDERAL AGENCIES AND LAND
Federal Lands
Fed lands = all land owned by the U.S. and managed by fed agencies
83% of NV is fed owned
only 9% of FL is fed owned
more fed land (national parks) = more tourism = more $ to state
Four stages of fed land management
Acquisition
29% of country is owned by fed gov
most is west of 100th meridian (ND, SD, NE, KS, OK, TX)
Obtained by purchase (LA purchase/Mexico) and conquest (native Americans, 13 colonies)
Disposition
US granted lands to people and states to secure and settle land
Homestead Act
When gov gives away land, they give patent (not title) to land
Retention
gov withdrew land from disposition, then reserved for specific purpose
1976FLPMA formally ends disposition era
Management
Federal Agencies
National Forest Service (NFS) – Dept. of Agriculture
Conservation mentality Manages 192 mil acres
National Parks Service (NPS) – Dept. of Interior
Preservation mentality manages 79 mil acres
National monuments/recreation areas
Fish & Wildlife Service (FWS) – Dept. of Interior
Conservation mentality manages 93 mil acres
National wildlife refuge system
Bureau of Land Management (BLM) – Dept. of Interior
Conservation mentality manages 245 mil acres
Public domain – focus on logging, mining, grazing, etc.
Organic Acts
Broad national acts with purpose to establish coordinated management systems for ALL units w/in a particular system of fed lands
Can be statutes created by Congress, presidential proclamations, or agency resource management plans:
National Forest Organic Act (1897)
National Parks Organic Act (1916)
Federal Land Policy & Management Act (FLPMA) (1976)
National Wildlife Refuge System Improvement Act (1997)
Hallmarks of Organic Legislation:
Purpose statement
Designated uses
Comprehensive planning
Substantive management criteria
Public participation
Different from enabling/establishment acts
Enabling/establishment = unit-specific legislation (management of ONE unit of a national park)
Organic acts must work alongside specific legislation
Hierarchy of Regulation (tiered decision-making):
Organic Acts (system-wide)
Enabling Acts (unit-based)
System-wide planning for all national parks
Regional planning
Unit planning
Public Lands: Summary
NEPA
National Environmental Policy Act – (125)
The basic national charter for environmental protection
Mantra: look before you leap
“When proposing to undertake any major fed action that will have significant impact on the environment, fed agencies must prepare and make public an EIS analyzing the environmental impacts of their proposed action and alternatives to that action” – 42 USC §4332(2)(C)
Council on Environmental Quality (CEQ) regulates and enforces NEPA
3 questions under NEPA
Who is the regulated entity?
W
) the degree of controversy surrounding those possible effects
SCOPE OF EIS ***apply this on exam
CEQ §1508.25: scope consists of the range of actions, alternatives, and impacts to be considered in an EIS
(a) actions can be connected actions, cumulative, or similar
(b) alternatives, which include no action alternative, other reasonable courses of action, or mitigation measures
(c) impacts include direct, indirect, cumulative
< > – §1508.25(a)(1) Connected: closely related and therefore should be discussed in the same impact statement
< >If one action automatically triggers other actions that may require EISIf they cannot or will not proceed unless other actions are taken previously or simultaneouslyIf they are interdependent parts of a larger action and depend on larger action for their justification(2) Cumulative: viewed with other proposed actions have cumulatively significant impacts and should be discussed in the same EIS
< >Thomas v. Peterson (note case – p. 152): agencies CANNOT segment impacts into small parts so that the scope is non-existent (when actions are connected)(3) Similar: when viewed with other reasonably foreseeable or proposed actions, have similarities that provide basis for evaluating impacts together (ex: timing, geography). The best way to adequately assess combined impact of similar actions is to do one EIS
< > – 1508.25(b)Alternatives include: no action alternative, other reasonable courses of actions, mitigation measures (some alternatives listed in §1502.14) – §1508.25(c)Direct: caused by the action and occur at the same time and place (§1508.8)Indirect: caused by the action and are later in time or father removed in distance, but are still reasonably foreseeable (§1508.8)Cumulative: impact that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non) or person undertakes such other actions (can result from individually minor but collectively significant actions taking place over a period of time) (§1508.7)Tiering: in some circumstances, it may be appropriate for agency to tier NEPA analysis by considering broader issues in an EIS prepared on a land use plan and additional site-specific issues in EISs or EAs addressing specific implementation proposals (§1508.28)
