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The eJournal is sponsored by the Environmental Law Center at the Vermont Law School, home to one of the nation's leading environmental law programs. Since establishing the Environmental Law Center in 1978, Vermont Law School has been training people to be environmental leaders in government, nonprofits, corporations, and private practice - locally, nationally, and internationally. With the largest and deepest graduate environmental law program in the country, the Environmental Law Center offers the most comprehensive environmental law and policy curriculum in the nation for law students, and also confers the Master of Environmental Law and Policy (MELP) and Master of Laws in Environmental Law (LLM) degrees, as well as a joint JD/MELP degree. The Vermont Law School's Environmental Law Center is also home to the Institute for Energy and the Environment, Environmental Tax Policy Institute, Climate Legacy Initiative, Land Use Institute, Partnership for Environmental Law in China, and Environmental and Natural Resources Law Clinic.



NATURAL RESOURCES LAW & POLICY eJOURNAL
Sponsored by the Environmental Law Center at Vermont Law School

"The Evolution of Relational Property Rights: A Case of Chinese Rural Land Reform" Free Download
Iowa Law Review, Vol. 100, 2015, Forthcoming

SHITONG QIAO, University of Hong Kong Faculty of Law, Yale University - Law School
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FRANK K. UPHAM, New York University School of Law
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The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who owns the things. To describe the evolution of property rights in China, we employ the concept of relational property. It is a concept that is heavily influenced by Joseph William Singer’s “social relations model? and Ian Macneil’s “relational contract? and, in particular, their emphasis on the determinative role of social relations in the construction of property and contract rights. The bundle of sticks metaphor is at the heart of relational property because it recognizes that property rights can be, and often are, disaggregated as they adapt to changing social, economic, and technological demands. As we show in the context of the reform of Chinese rural land, the combination of the metaphor of separable interests — the sticks in the bundle — and the dependence of property interests on social relationships can explain the evolution of property rights more accurately than a perspective that stresses a single central meaning of property.

"Keeping Track of Conservation" Free Download
42 Ecology Law Quarterly 79 (2015)

JESSICA OWLEY, State University of New York (SUNY) at Buffalo - Law School
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Throughout the world, governments require land protection in exchange for development permits. Unfortunately, oftentimes scant attention has been paid to these land protection programs after development. Agencies and permit applicants agree on mitigation rules, but there appears to be little follow-up. When we do not know where conservation is occurring and cannot determine the rules of mitigation projects, the likelihood that they will be successful or enforced diminishes. I journeyed to California in search of answers by tracing four mitigation plans associated with the Federal Endangered Species Act. While I anticipated some difficulties, the tale is more alarming than expected. The government entities involved struggled to locate and understand the permits themselves, let alone the details of the compensatory mitigation projects. A common land protection tool in this context is the conservation easement. These exacted conservation easements exchange public goods for private gain. Attempting to locate and understand these mitigation easements revealed pervasive problems with tracking mitigation in the United States. The federal agencies had trouble finding and understanding records. The county offices charged with recording property restrictions often had inadequate records of land use restrictions. These challenges exacerbate the accountability and enforceability concerns already associated with mitigation programs. Such uncertainty calls into question this method of environmental conservation. This Article highlights pressing concerns with our current mitigation paradigm and calls for reform of federal programs through promulgating new regulations and updating agency guidance. Furthermore, this project calls upon citizens and researchers to turn their eyes to mitigation programs generally and to question whether such programs truly compensate for the environmental harms they facilitate.

"Sustainable Finance - A Blueprint for Severance Taxes in the Marcellus Shale" Free Download
Kentucky Journal of Equine, Agriculture & Natural Resources, Vol. 7, p. 297, 2015

RYAN PULVER

Since the implementation of hydraulic fracturing, natural gas extractors have been able to reach deposits of natural gas that were previously thought cost prohibitive or impossible. The Marcellus Shale, which covers much of the Mid-Atlantic region, has become a plentiful source of natural gas because of this hydraulic fracturing implementation. The environmental concerns of hydraulic fracturing have been well publicized in both the media and academia. However, little has been discussed about the pragmatic and ancillary aspects of natural gas extraction in the Marcellus Shale region, namely severance taxes.

Severance taxes are excise taxes on the extraction of natural resources. The severance taxes fulfill many roles including general gubernatorial funding, environmental protection funding, and as a general deterrence to the extraction of the natural resource. Despite the broad utility of severance taxes, many states in the Marcellus Shale region have not enacted severance taxes on natural gas. With many of the issues facing states in the Marcellus Shale region such as budgetary difficulties and environmental protection, the Article postures that at least one of these states will enact a severance tax on natural gas in the near future. This Article attempts to provide a survey of severance tax policies from high natural gas producing states that already have natural severance taxes in place. In doing so, this Article emphasizes certain severance tax policies in states with active natural gas extraction as beneficial and practical for states in the Marcellus Shale region that have not yet enacted a severance tax on natural gas. In addition to endorsing certain severance tax policies, this Article also discusses federal constraints on the states’ enactment severance taxes.

"Natural Resource Restoration" Free Download
Tulane Environmental Law Journal, Vol. 28, No. 1, 2015

ALLAN KANNER, Kanner & Whiteley, LLC
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Public trustees at the state, federal, and tribal level are tasked with ensuring that those responsible for destroying or damaging natural resources sufficiently compensate the public for its loss. Those trustees have the fiduciary duty to maintain and restore the natural resources within the public trust. Since the late 1980s, a consensus has formed around a set of guiding principles and best practices in natural resource damage restoration. Public trustees now agree that in order to fully compensate the public for its loss, restoration of a destroyed or damaged resource is preferable to an award of money damages. Natural resource restoration requires that the injured natural resources be restored to their uncontaminated condition or replaced with equivalent resources, for example when new wetlands are created to replace former wetlands damaged or destroyed by pollution. Public trustees also use certain methodologies, such as resource and habitat equivalency analyses, to determine other components of the public’s loss due to the destruction or damage to its natural resources by polluters. Both principles require polluters to compensate the public for its lost resources by providing restored or additional natural resources. Beyond a set of essential public trust principles and best practices, however, public trustees have considerable discretion in carrying out their fiduciary duties and in achieving their mission of conserving, replenishing, and restoring the natural resources in their care. This Article explores these important developments in natural resource restoration law as well as the interplay between public trustees’ legal duties and their discretion to determine how best to carry out those duties when conserving and restoring natural resources.

"Non-Compliance in a Dangerous Time: The Pitfalls of Section 27 of the Surface Rights Act" Free Download
The Negotiator, February 2015

FENNER L. STEWART, University of Calgary, Faculty of Law
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The primary purpose of the Surface Rights Act is to avoid litigation when an obstinate landowner rejects all reasonable offers for compensation in exchange for access to their property. When negotiations breakdown, the Surface Rights Board intervenes and establishes the terms, including compensation, of the surface lease. By offering an alternative to a privately negotiated lease, the Act promises to break deadlocks between lessor-landowners and lessee-operators resulting in expedited energy projects. Further, it is hoped that by providing an alternative to the more adversarial judicial system, more amicable relations between landowners and operators will develop even in less than ideal circumstances.

Unfortunately, Section 27 of the Surface Rights Act appears to be undermining the goal of facilitating amicable relations. Section 27 aspires to initiate the renegotiation of a surface lease every 5 years. Such renegotiations are necessary so that the parties can review the compensation payable in light of variables arising and evolving over the lease term. These variables include: the compensation that other landowners recently received, the per acre value of the land, the actual loss of use, and other adverse effects such as damages. The problem lies in Section 27’s requirement that obliges the operator to notify the landowner of the opportunity to renegotiate the lease. Predictably, the landowners rely upon this notification requirement. The Act, however, provides no punitive measure for non-compliance; this, in turn, leaves the operator to follow market incentives. Since renegotiating a lease usually costs the operator more through additional compensation payouts, this incentive encourages the operator, as a rational market actor, to ignore the notification requirement. Non-compliance with the requirement frustrates the landowner when he or she discovers they were short changed by the operator; this ultimately undermines the goal of amicable relations. Undermining amicable relations is precisely what the drafters of the Surface Rights Act were attempting to avoid. In contemplation of this regulatory failure, this article explores the pitfalls of this legal quagmire for landowners, the Alberta government, and even the operators who appear to be profiting from the situation.

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About this eJournal

Sponsored by: Institute for Energy and the Environment at the Vermont Law School. This eJournal distributes working and accepted paper abstracts dealing with the regulation, management, and distribution of natural resources. The eJournal will discuss a diverse array of natural resource topics such as public and private land use, wildlife and biodiversity, forest protection, mineral rights, parks and wilderness, the public trust doctrine, water and wetlands, and tribal lands and resources.

Editor: Melissa K. Scanlan, Vermont Law School

Submissions

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Directors

ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-Sub.

Advisory Board

Natural Resources Law & Policy eJournal

LEE P. BRECKENRIDGE
Professor of Law, Northeastern University School of Law

HOLLY DOREMUS
Professor of Law, University of California, Berkeley - School of Law

TIMOTHY P. DUANE
Professor, University of California, Santa Cruz

JONATHAN NASH
Professor of Law, Emory University School of Law

DAVE OWEN
Associate Professor of Law, University of Maine - School of Law

ROBERT V. PERCIVAL
Robert F. Stanton Professor of Law and Director of the Environmental Law Program, University of Maryland - Francis King Carey School of Law

MELISSA POWERS
Assistant Professor of Law, Lewis & Clark Law School

J. B. RUHL
David Daniels Allen Distinguished Chair in Law, Vanderbilt University - Law School

MARK STEPHEN SQUILLACE
Professor of Law and Director of the Natural Resources Law Center, University of Colorado Law School

STEPH TAI
Associate Professor of Law, University of Wisconsin Law School

JAY WEXLER
Professor of Law, Boston University School of Law