The Fair Market Value of Public Resources

Abstract

Government agencies and officials are regularly criticized for selling public assets at a loss. Such criticisms arise in a host of contexts, ranging from sales of real estate and natural resources to sales involving intangibles, such as the right to broadcast over the airwaves or to operate a toll road or a set of parking meters. Underpriced resource sales prompt concerns that a small set of private entities are unjustly enriched by transactions that should properly benefit the public as a whole.

This Article explores the problem of public resource sales with particular reference to natural resources managed by the federal government. Lands owned by the United States hold trillions of dollars’ worth of natural resources. Federal agencies earn billions in annual revenue from resource sales, yet critics assert that billions more could be reaped if resources were sold for a fair price. Although federal law has increasingly required that agencies price resources at fair market value, this requirement is surprisingly difficult to interpret and even more difficult to implement and enforce. This Article analyzes the various forces that bear on public resource transactions and details the problems that continue to plague these transactions, explaining why federal institutions are commonly unable to satisfy the fair market value standard. It argues that natural resource law should invoke procedural safeguards to protect against the undue influence of incumbent resource users and assure the public a fair return on resource sales. In so doing, it sheds light on how public institutions deal in the marketplace and how public ownership affects the value of property.

Keywords: Natural resources, environment, public lands, coal, coal mining, fair market value, privatization, public choice, public property, state property