Remedying the Misuse of Nature
68 Pages Posted: 26 Apr 2014
Date Written: 2012
While our appreciation for what constitutes a misuse of nature has evolved with the study of ecology, our environmental laws have not. The multitude of environmental laws, although important in their own right, do not protect nature as an interconnected whole. Rather, environmental laws dissect ecosystems into discrete elements — air, water, timber, and wildlife, for example. This dissection ignores the invaluable services that ecosystems provide when allowed to function without undue disruption. This Article continues the work of scholars who have urged a mended view of private property and others who have described the failings of environmental laws to protect ecosystems as interconnected wholes. Joining the existing dialogue, this Article tackles the uncomfortable and controversial issues of ethical obligations, private property rights, and public ownership: It describes the shared responsibility to avoid the misuse of nature, finding support for this responsibility in literature, religion, culture, science, and law. It explains how the study of ecology has led to more mature views on nature — views that recognize the utility of nature when allowed to function as an interconnected whole. It surveys the scholarship that calls for a similarly mature understanding property — an understanding that recognizes the legitimate role of public interest in property law. Finally, it highlights how the multitude of environmental laws currently in effect do not protect nature as an interconnected whole.
By bringing these conservations into the same space, this Article sets the stage for a broader vision of natural resource law reform and picks up where others have left off. Turning to natural resource damages law as a touchstone for reform, this Article suggests that the bedrock principles underlying natural damages law are a promising foundation for a reformed legal system that respects broader public interests in how nature is altered and provides a remedy for misuse. The aim of the reformed law is necessarily broad, concerned with misuses of nature on public and private lands alike, as well as misuses that arise from multiple stressors. Though the details of what the reformed law would look like and how it would operate are necessarily left for another day, the challenges enumerated are fundamental considerations for any comprehensive law that seeks to protect ecosystem health across ownership boundaries.
Keywords: natural resources, damages, remedies, natural resource damages, ecosystems, ecology, environmental law, public lands, private property
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