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Natural Resources Law
University of Texas Law School
Taylor, Melinda E.

Natural Resources and Energy Production – Prof. Melinda Taylor- Summer 2010

6-3-10

Attendance: cannot miss more than 3 days

10% grade = class participation

70% final-open book open note

20% case memo-2-3 pages long, June 21st or 22nd

What is “Natural”?

Continuum-highly manipulative system, urban city system on one end, on the other end-untouched system, e.g. Antarctica

park land-highly manipulated – think central park, less natural then a national forest

point: bring own system of values when evaluate something

every decision made in natural resources context is overlaid by values in a given context

Rocky Mountain Arsenal situation

area just outside of Denver 17k acres of land, military used it to manufacture chemical weapons, after WWII person bought it to test and make pesticides

shell then bought it, and produced pesticides until 1982

crops failing because farmers irrigating with contaminated ground water

clean up began in 1974, federal gov’t stepped in the 1980s as a priority clean up

ongoing clean up, projected to be done in 2011

1986: fish and wildlife service, discovered number of endangered species at site, bald eagles, rare plants, because fence put around area for such a long time, wildlife migrated into it, plants establish itself there, valuable from a habitat perspective

1992 Rocky Mtn Arsenal National Wildlife Refuge Act, once cleanup system is complete will be a refuge, 12,500 acres

surface will have to be turned over to complete clean up, question is if doing that results in destruction of habitat of species that live there

if ground water is useful to some communities, does that make a difference?

questions:

1) moral obligation that humans have to clean up an area because they contaminated it, get back to pristine condition

2) doing that will disturb wildlife, make a difference?

3) if necessary to disturb wildlife, in order to clean drinking water, should we do it anyway?

is arsenal less natural, than undisturbed refuge

natural area or refuge should be a pristine area?

matters what wildlife is there now, not what happened before?

Cronon’s Categories:

1) nature as naive reality

nature is beautiful, nature doesn’t change over time and that is what people value

accurate? most people understand that nature is always changing, changing currents, species evolving

inherently true that nature of a waterfall to always be in a certain type of setting, something immutable about nature but not in a temporal sense

context of oil spill-law applicable to damages, nature of business of deep sea drilling is that will have to deal with spills in the future

species will always need a certain habitat

2) nature as moral imperative

GMOs genetically modified organisms, banned, even though are not detrimental to human health, though could out perform regular species,

deal with whole range of activities other than dealing with protecting a place

3) nature as eden

places that are still relatively untouched, heart of Amazon, leave untouched because what we aspire to have on a larger scale

4) as artifice

do manipulation of natural systems, irrigation, cut down forests to create pastoral settings, parks, golf courses, imposing humans ideas/visions on a landscape

5) as commodity

idea of passenger pigeons destroyed, birds being harvested for feathers alone, sea world, anything less valuable about family going to sea world for vacation rather than going to Colorado, experience and exposure to species in nature

6) nature as demonic other

earthquakes, volcano, things happens, humans don’t have any control over, power of nature, is used against certain activities, e.g. damming up a river, moralistic value

Fire in Nature

yellowstone-reintroduction of wolves to yellowstone, last one shot in 1926, number of elk skyrocketed-manipulated and changed the plant community

1995-at urging of wilderness society, gov’t introduced 14 wolves into yellowstone, brought in from canada, successfully bred and thrived in yellowstone

proposed delisting the wolf from endangered species list, then farmers hunters could shoot wolves, so elk population could increase again, wildlife defenders stopped the delisting

now another conservation organization, called elk foundation, which wants to appeal that decision, wolves reintroduced were stronger than native wolves, gov’t screwed up when introduced “wrong” wolf, ecosystem still changed

does it matter different species of wolf that was introduced?

right for gov’t to value wolf as opposed to the elk?

Bill McKibben p.10

nature has ended, doesn’t exist anymore because has been manipulated

reflects his own values of nature

Fire:

fires occur naturally, rethink fire policy of putting them out, fire should be used as land management technique

Sri Lankan coral reefs

unsustainable harvest, takes decades to grow

subsistence building needs,

moral implications

immoral for people to be harvesting coral, different because of the society, poorer society

gov’t offered for these people to go into farming, most refused

obligations to future generations

moral obligation to protect species/ecosystems apart from any obligation to future generations? American view? fish and coral have own right to exist

Environmental Ethics

Biocentrism (life centered)

deep ecology

everything has rights, even rocks and soil?

land ethic

more prevalent-community of species have a right to exist, humans are not inherently more valuable, harvest for own existence but not to eliminate a species

anthropocentrism (human centered)-our duty to exert dominion over other forms of life, judeo christian view point, life exists to serve us

utilitarianism

Mill- greatest value to greatest number of people

baxter p. 17-argument speaking on behalf of people in general, need to make case to common person that management of resources in a certain way will benefit that certain person, won’t work

people not moved by argument that protect species because they are simply out there, need to say how their own welfare will be changed if species is extinct or goes missing,

economic value

consumable ecosystem goods-fish, cranberries, can be harvested

activities (non-mkt) hiking, water skiing, swimming

existence value/bequest value-value some resources because they exist

value because we want children and their children to see a panda someday

ecosystem services-wetlands-flood control, filtration, pollination

intergenerational equity

6-4-10

Guest Speaker: David Wolfe-Science of Conservation

EDF-Env’t Defense Fund

Ecosystem definition:

components, plants and animals, animals migrating in and out, as well as solar energy, water, nutrients migrating, so components + processes

both pieces and processes must be conserved

food chains:

food pyramid-need lots of plants to support mammals then have predators at top, lose efficiency as go up the pyramid not all energy from plants end up in lions

national heritage programs-do research and monitoring to keep track of endangered species

G1: critically imperiled

G2

G5: Secure

concentration of biodiversity hotspots in SW US, CA aggressive at monitoring species through national heritage program

Examples of Endangered species and conservation status

Bald Eagle

build nests in tall trees near water, but adaptable, range is widespread

biggest threat other than humans is DDT

DDT banned, eagles rebound came off of endangered species list

Woodpecker

habitat-pine trees in SE U.S., logging prevalent, habitat destroyed in late 1800s early 1900s

small home range-territories of a few acres to dozen acres

aggressive conservation, conserving remaining patches of pine habitat

Ocelots-used to prevalent across south TX, now only 60-70 individuals left in wildlife reserve in very small area, because their habitat has become cultivated land or urban areas, instead of the dense thorn scrub that it occupies

getting run over

Golden Cheek Warbler

conservationists in Austin coordinating with conservationists in South America (where their winter habitat) is

Conservation Incentives

technical and financial assistance

regulatory assurances

safe-harbor agreement

between landowner and fish and wildlife service

agreement that says that if LO is willing to do something beneficial for species, create habitat for such an amount of time, LO allowed to take habitat back to starting point conditions after a certain amount of time

build in comfort with LO, while creating benefit for species

most LOs when sign safe harbor, that have no intention to go back to baseline, but like knowing that they can return to baseline if they need to

mitigation banks

LO who has habitat, sells credits to developers who are destroying habitats

Recovery credit systems

offset Ft Hood’s impact on GCWarblers’ habitat

Ft Hood gets credits that it accrues in an account, and if takes action that impacts negatively habitat, then can dip into that account

Ecosystem service payments

compensate LOs for managing in such a way as to provide clean water, carbon sequestration habitat for endangered species and other ecosystem services

Lecture:

Eco. Value of Natural Resources (ctd)

consumable ecosystem goods (timber0

ecosystem services

Hedonic pricing-used to evaluate how much open space adds to real estate value, have real estate next to reserve, lots that overlook it reserve are worth more

replacement costs-of flood control services of LA barrier islands, build bunker instead

wetlands-water filtration system, how much cost to build a water treatment plant

difficult to put a dollar value on ecosystem service

have to go through cost/benefit analysis of proposed regulation or rule

very difficult, but agencies must go through these

Natural Resource Management Challenges

Scarcity

Resource Category

Examples

Primary Mgmt Challenges

Extractive; non-renewable

coal, oil, copper

provide incentives for further development; equitable allocation

Extractive; renewable

fish, timber, soil, ground water

ensure sustainable yield; equitable allocation

E

million acres, create in 1960 by Eisenhower, oil discovered in 1968, debate whether to commence drilling, caribou

oil industry-jobs, revenue, infrastructure created for indigenous people, reduce dependency on foreign oil, = 30 years of imports from Saudi Arabia,

drilling pads are smaller now, won’t impact value of land

opponents to drilling-most env’t groups, eskimo groups

impact is more than oil industry is saying-need infrastructure and roads

drilling areas (though called small) will have significant impact on caribou

having cheap oil reserve will slow technological advances in renewable energy resources, provide only less than 2% of oil consumption, take a decade to bring it online, have more impact with renewable sources

pipeline breaks, oil spills

fragmentation of habitat

pollution from road construction, equipment

uncertainties-pipeline could be beneficial for caribou, people don’t really know how caribou would be affected

don’t know how economically feasible it is to get the oil down to the lower 48 states, transport by sea

how should the uncertainties weigh into the decision:

for opening ANWAR-address problems as we go, adaptively manage, if impacts to caribou, figure it out, make adjustments

opponent of drilling-uncertainties become a key part of the argument

use oil spill in the gulf, very vivid limitation of technology, here is a pristine harsh env’t don’t know how the env’t will be impacted by it

Tools for Managing Natural Resources(5 Ps)

1) prescriptive regulations

command and control

limits on fishing, here is limit, don’t exceed limit, require reports periodically

need effective enforcement

knowledgeable implementing agency that hasn’t been captured by the regulated community

2) property rights

establish property rights, holder will have more incentive to manage resource more efficiently

air and water contact

utilities can emit a certain amount of SO2 and can sell right to pollute to someone else

difficult to establish rights of resources, e.g. migratory birds, who owns them

difficult to allocate the right

main statute debate dealing with climate change, right to emit different greenhouse gases among the utilities and other entities

pay for allocation or give them the allocation, costs would be passed on

3) payments and penalties

subsidies-

encouraged bad natural resource management

swamp buster- fed gov’t pays farmers to allow land to return to swamp/natural state

4) tradable permits

related to property rights, hybrid b/w property rights and prescriptive regulation

gov’t bans a certain activity, e.g. emission SO2, except when have a property right to emit a certain pollutant

result in inequities, rewarding someone who is inefficient in the use of the resource

5) public disclosure

used with success to encourage positive behavior

ex: dolphin friendly tuna label, consumers became concerned about dolphin death and responded positively

EPA, TRI database, env’t group put it on the web, can find industries in a zip code and how much they are emitting

so industries start figuring out a way to reduce their emissions

6-8-10

Administrative Agencies

within the executive branch, can adjudicate disputes between parties (judicial), can issue rules and regulation (legislative), and enforce (executive)

arguments as to whether this is const. under separation of powers

US v. Grimaud

Ranchers challenge USFS’ fee for grazing in national forests

SCOTUS upholds the fee:

impracticable for congress to regulate the details

agencies can carry out these different fxns and not violate separation of powers

p. 213 impractical for congress to figure out every detail itself, fine for congress to delegate to an agency

agency’s discretion limited by statute

limited to terms of the statute, and subject-matter that the agency is charged with regulating

look at enabling statute

Natural Resource Agencies

Dept of Interior

Fish and Wildlife Service

regulates endangered species