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Natural Resources Law Natural Resources Law Natural resources law performs three basic functions: it Basic Functions specifi es the parts of nature that can be owned and the basic terms of use rights, it facilitates resource-related Broadly speaking, natural resources law performs three transactions, and it provides mechanisms to coordinate basic tasks. First, it specifi es the parts of nature that can uses and resolve inevitable disputes. Within these func- be owned and defi nes or prescribes the terms of the legal tions, a key question for lawmakers is whether a part of rights (use rights) that users acquire. Many uses of nature nature is identifi ed as a discrete resource or an attribute involve the extraction and consumption of parts of nature. of land ownership. Other uses—recreational activities and nondamaging uses of a land surface such as hiking and recreational boating— atural resources law is the body of legal rules that are mostly nonconsumptive. Valuable parts of nature can Nencourages and controls uses of nature, particularly lie beneath, on, or above the surface. Resources that people the parts of nature that people fi nd valuable. Most soci- consume can be either naturally renewable (plants, animals, eties have rules prescribing who can use nature, where, some energy sources) or nonrenewable (most minerals and and in what ways. When markets play a dominant role, a fossil fuels). Laws setting the terms of resource-use rights society’s legal system tends to include more complex laws typically prescribe what can be used and in what ways, that go beyond defi ning use rights in nature to regulat- specify the duration of use rights and their transferability, ing commercial transactions. Similarly, a society concerned address the inevitable confl icts among resource users, and about environmental degradation will have rules limiting impose cleanup or restoration obligations once a resource- resource-related activities to reduce environmental harms. use activity ends. Natural resources law also includes rules In such societies, natural resources law may have multiple that allocate use rights—that is, rules specifying how gov- aims: to encourage and facilitate uses of nature, to promote ernments make ownership rights in nature initially avail- fairness among citizens, and to ensure that human activities able to fi rst users. do not unduly pollute or degrade the natural environment. Th e second basic task of natural resources law is to facil- In order to understand natural resources law, it is impor- itate resource-related transactions. Resource-use rights tant to identify its main elements and basic functions. As often arise in private transactions—licenses, leases, sales, lawmakers craft laws, they have certain options to meet conveyances, and the like. Typically, private parties enjoy their particular circumstances and needs. Th e United considerable freedom in how they structure such transac- States has detailed, varied bodies of natural resources law tions (as do governments when they are engaged in simi- among its fi fty individual states. Although the laws of other lar commercial transactions). Natural resources law can nations can vary considerably from U.S. laws, the underly- assist such transactions, thereby making markets more ing functions of natural resources law are basically the same regular and effi cient. One way it does so is by prescrib- everywhere. In some manner, lawmakers in all nations ing rules of contract or deed interpretation that govern a must devise rules that perform these basic functions. As transaction unless the parties choose otherwise. Th e law, such, one can identify similarities among legal systems and for instance, may provide defi nitions for commonly used among the laws governing specifi c natural resources. terms (for example, mineral rights, mining claims, water 396 © BERKSHIRE, a global point of reference, 2011 www.berkshirepublishing.com N.indd 396 1/21/2011 3:25:47 PM NATURAL RESOURCES LAW • 397 rights, and hunting easements). It may prescribe widely parts of nature belong to the landowner and which parts accepted royalty arrangements and presumptions govern- are discrete assets. ing the duration of use rights (for example, the rule that a Landownership almost always includes rights to use the particular use right lasts only so long as its owner makes soil, to harvest most or all plants, to grow crops, and to continued use of it). In such instances, the law fi lls in the engage in some range of surface-use activities. Even on gaps in incomplete contracts and incorporates customary these basic points, however, legal systems vary. In colo- understandings into private transactions. If private parties nial America for instance, English law withheld certain desire, they can usually reject these legal conventions and tall trees from private owners, reserving the trees for use by deviate from customary practices to defi ne terms as they the Crown as ship masts. Nature protection laws in many see fi t. In some instances, lawmakers insist that contracts countries today (e.g., Great Britain) similarly protect par- or deeds include specifi c terms designed to foster some ticular forests and even specifi c trees. public policy, without regard for the wishes of the parties. Beyond such uses of soil and vegetation, there is less For example, laws governing oil and gas leases may insist agreement among legal systems on the parts of nature that all leases require lessees to clean up well sites when that attach to land. Landownership, for instance, may or pumping ends. may not include rights to extract minerals on or beneath Th e third major task for natural resources law—one the surface—that is, rights to remove coal, metals, oil and that is gaining in importance—is to facilitate the emer- gas, and building stone. When minerals gence of governance regimes by which resource users (and are excluded from landowner- perhaps other people) coordinate resource uses and ship, then either the govern- resolve disputes. For instance, irrigators in ment retains the minerals for many jurisdictions are empowered to form state exploitation or they are irrigation or water-conservancy entities, separately allocated as discrete which can orchestrate water uses over resources. Jurisdictions take a vari- large areas. Similarly, owners of land ety of approaches on this criti- parcels above a particular oil and cal issue of mineral ownership. A gas fi eld might be empowered to landowner, for instance, may have form joint-management entities rights to engage in “hard rock” to facilitate drilling and recovery mining (removing coal, stone, and methods (termed pooling and metals) but have no right to remove unitization arrangements in the oil and gas. Laws can draw even United States). Looking ahead, fi ner distinctions. British law, natural resources law might well for instance, long provided include more provisions that are that gold and silver remained aimed at encouraging resource the property of the Crown, no users to work in concert for joint matter where it was located. benefi t. Landowners had the right to obtain all other minerals. Simi- What Comes lar variations arise with respect to with Land? water, a critical resource in much of the world. Landowners may or may A key task for lawmakers is to prescribe which parts of not have rights to use water that fl ows over, adjacent to, nature can be owned and to set the basic terms of use rights. or beneath their lands. In the United States, this issue is A particular part of nature could be viewed as a discrete largely governed by the laws of the individual states. Laws resource such as a right to divert and use water, a right to in the eastern part of the country tend to empower land- cut trees, a right to hunt, or a right to graze livestock in an owners to use both surface and groundwater, with rights area. Alternatively, a right to use part of nature could be shared among landowners. Laws in the western part of the viewed as an attribute of land ownership, meaning that the country more often treat water as a discrete resource and legal right to use the resource is one of the entitlements include separate rules governing who can gain water rights held by the owner of the land that includes the resource. and how these rights can be obtained. Lawmakers regularly employ both of these alternatives— Similar legal variations exist with wildlife. Lawmakers treating a resource as part of the land and treating it as a must consider the following questions: Does an owner of discrete resource that one acquires separately. Th us, in sur- land own the wildlife located on it? (In the United States, veying the law of a jurisdiction, it is useful to learn which the answer to this question is no, but in Great Britain, for © BERKSHIRE, a global point of reference, 2011 www.berkshirepublishing.com N.indd 397 1/21/2011 3:25:53 PM 398 • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY example, the answer if yes.) Typically, if a landowner owns their lands in ways that cause no interference. Th us, pri- the wildlife located on the land, the rights end when a wild vate land may remain open to public hikers without the animal migrates. Alternatively, does the legal system view landowner’s consent. In many societies, the public holds rights to use wildlife, which are often tightly controlled by expansive rights to use unenclosed private lands for hunt- species, season, and location, as separate resources allo- ing, foraging, travel, and livestock grazing. In these soci- cated apart from land? Similar issues arise over uses of air eties, resource-related activities are sometimes viewed as space, access to light and wind, and uses of caves.
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