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Natural Capital and the Rule of Law Second Asian Judges Symposium on Environment Dec . 3-5, 2013 . J.B. Ruhl David daniels allen chair in law Vanderbilt university Law School Nashville, TEnNESSEE , USA. Introduction. The Legal Challenge. How to Protect Natural Capital. - PowerPoint PPT Presentation
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J.B . RUHLD AV I D D A N I E L S A L L E N C H A I R I N L AW
VA N D E R B I LT U N I V ER SI T Y L AW S C H O O LN A S H V I L L E , T E N N E SSE E , U S A
NATURAL CAPITAL AND THE RULE OF LAW
Second Asian Judges Symposium on Environment Dec. 3-5, 2013
Introduction
How to Protect Natural Capital
In Order to Protect Ecosystem Services
Groundwater recharge
Water supplySediment captureFlood controlBiodiversityWildlife HabitatRecreation
The Legal Challenge
Building the Law and Policy of Ecosystem Services
Context: The knowledge base (ecology, geography, economics) from which law must work
Current Status: The baseline of existing property rights, regulations, and social norms
Designing New Legal Principles: The choice of institutions and instruments to advance the new policies
Complex Ecology: Natural capital and its ecosystem services system are spatially and temporally complex
Unclear Property Rights: Lack of clarity about land and resource owners’ rights and obligations
Unclear Legal Authority: Uncertainty about agency and judicial authority to incorporate natural capital and ecosystem service values into decision making
THREE KEY CHALLENGES
COMPLEX ECOLOGYThe Entire Ecosystem Service
Delivery System Must Be Protected
1. Natural capital source
2. Service provision (time A)
3. Service delivery channel (time B)
6. Many end user contexts
4. Beneficiary sites at different distances
5. Service delivery(time C)
Wetlands
River Clean water for
farms and cities
Streams Time and Distance
PROPERTY RIGHTSEstablishing Rights and Duties
Who owns ecosystem services? Pollination? Groundwater
recharge? Flood control?What services must
landowners provide to the public? Duty to public?
What services must landowners provide to surrounding landowners? Minimum standards of
care?
PROPERTY RIGHTSRemedies
What are the remedies for destroying natural capital or interfering with ecosystem services? Private nuisance? Public nuisance?
What of misuse of public property? Public trust duties?
LEGAL AUTHORITYPotential Sources
ConstitutionsTreatiesLegislative
Statutes Administrative
Regulations and Policies
Law of Property, Torts, Contracts
LEGAL AUTHORITYInterpretation Questions
Constitutional terms are broad
Statutes pre-date awareness of natural capital
Undefined statutory termsUnclear boundaries of
agency discretionBalancing property rights
with new policies
LEGAL AUTHORITYChallenges for Courts
Establishing principles ofStandingPleadingEvidenceBurden of proofRemedy
BEGINNING AN EVOLUTION IN PROPERTY LAW?
Examples of Judicial Innovation in the U.S.
The Situation In the U.S.
Not much progress in public law forums:U.S. Constitution protects property rights but not the
environmentSome recent statutes enable natural capital markets
2008 Farm Bill and USDA Office of Environmental MarketsSome federal agencies have begun to use ecosystem
services as part of mitigation decisions 2008 US EPA and wetlands mitigation rule 2012 US Forest Service planning rule
But US state courts have begun to adjust common law property rights
Palazzolo v. State, 2005 WL 1645974 (Super. Ct. R.I., July 5, 2005):
Land developer sought to fill coastal pond to build homesState of Rhode Island allowed only one home to be builtDeveloper sued for taking of property without just
compensation Court denied taking claim, finding destruction of the pond
would constitute a public nuisance because the pond “actually filters and cleans runoff”
“This Court finds that the effects of increased nitrogen levels constitute a predictable (anticipatory) nuisance which
would almost certainly result in an ecological disaster to the pond.”
U. S. Common Law: Nuisance Doctrine
Avenal v. State, 886 So.2d 1085 (La. 2004)State of Louisiana sought to alter public water diversion
channelOyster farm leasing the area claimed taking of propertyCourt denied taking claim because state must manage the area
for the public trust
“The public resource at issue is our very coastline, the loss of which is occurring at an alarming rate. The risks involved are
not just environmental, but involve the health, safety, and welfare of our people, as coastal erosion removes an important
barrier between large populations and ever-threatening hurricanes and storms.”
U.S. Common Law: Public Trust Doctrine
Conclusions
Courts will play a significant role in the development of natural capital and ecosystem services in environmental law:Defining property rights, duties, and
remediesInterpreting constitutional, statutory, and
regulatory provisions Establishing access to and standards of
judicial reliefHelping to shape social and cultural norms
QUESTIONS?
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