The University of Colorado at Boulder Law School

University of Colorado Law Review

Volume 78, Issue 2, Spring 2007

FOREWORD

Each year the University of Colorado Law Review devotes an entire issue to natural resources and environmental law topics, and this year is no exception.  We perpetuate this tradition not out of convention but out of recognition that the topics contained in these annual issues—here, federal protection of wildlife; access to environmental, health, and safety information; free market environmentalism; and incidental natural resource rights—are of great importance to society.¹

A core challenge for natural resources and environmental lawyers is finding balance between the aesthetic value and commercial utility of a resource.  Ralph Waldo Emerson illustrates this tension in the following way:

Nature never wears a mean appearance . . . . When we speak of nature in this manner, we have a distinct but most poetical sense in the mind.  We mean the integrity of impression made by manifold natural objects.  It is this which distinguishes the stick of timber of the wood-cutter, from the tree of the poet.²

Despite their prosaic form, the articles contained in this issue will, we hope, elicit the latent “poetical sense” in your mind, dear Reader.  So much so, that when the authors speak of something from nature, such as a stick of timber, you will think of something in nature, such as a tree.

In our lead article, After Gonzales v. Raich is the Endangered Species Act Constitutional under the Commerce Clause, Professor Bradford C. Mank posits that Congress now has the unambiguous authority to regulate all endangered and threatened species, including species that are neither located in multiple states nor significant to interstate commerce. Behind this new power, Professor Mank explains, is the Supreme Court’s affirmation of Congress’s authority to regulate non-economic, intrastate activities so long as the regulation is part of a comprehensive statutory scheme that appropriately regulates interstate commerce.  Applying that reasoning to federal regulation of endangered and threatened species, Professor Mank argues that the Endangered Species Act’s comprehensive scheme can be used to protect all endangered and threatened species that are either interdependent species or that reside in interdependent ecosystems.

In our second article, Secrecy and Access in an Innovation Intensive Economy: Reordering Information Privileges in Environmental, Health, and Safety Law, Professor Mary L. Lyndon examines the conflict between secrecy of and access to information concerning the environmental, health, and safety (“EHS”) risks of commercial activity.  Professor Lyndon questions the current legal approach to EHS access, arguing that it overvalues commercial interests to the detriment of institutional and instrumental decisions that require a dynamic knowledge base.  To prevent claims of entitlement from creating pockets of static information, Professor Lyndon advocates for presumptive EHS access rules that would permit nondisclosure only in very limited contexts.  In this age of rapid innovation and development, Professor Lyndon concludes, EHS access is essential for risk monitoring and risk management.

The Tragedy of the Commons and the Myth of a Private Property Solution, by Professor Amy Sinden, exposes two misperceptions about “free market environmentalism” that exaggerate the extent to which private property and free market regimes can solve environmental tragedy of the commons problems.  The first misperception Professor Sinden explores is a mischaracterization—both semantically and conceptually—of programs that rely on government regulation either to define or to control environmental markets.  The second misperception concerns the incorrect assumptions environmental free marketers make about the real world application of programs that purport to solve tragedy of the commons problems in areas such as land, ocean, and wildlife.  These misperceptions, Professor Sinden contends, create the false impression that government regulation can be wholly privatized.  Such narrow thinking, Professor Sinden concludes, dangerously squeezes the government out of the discussion.

In our student comment, Coalbed Methane: Crafting a Right to Sell from an Obligation to Vent, Mr. L. James Lyman explains how the confusion about whether companies operating coal mines on federal land can capture and sell or consume the coalbed methane they incidentally produce has resulted in over a hundred billion cubic feet of wasted methane per year.  Mr. Lyman argues that these federal coal operators ought to be allowed to sell or consume such methane not under the law governing ownership, but rather the law governing incidental mining rights.  He goes on to suggest a legal framework that could be instituted on a state level by the Colorado Oil and Gas Conservation Commission and similar agencies in other states.  Clarifying this area of the law would, Mr. Lyman concludes, reduce greenhouse gas emissions, provide additional fuel for power generation, and avoid the waste of valuable natural resources.

The last four articles in this issue review the new “generation” of natural resources law casebooks.  In the first casebook review, From Martz to the Twenty-First Century: A Half-Century of Natural Resources Law Casebooks and Pedagogy, Professor Michael C. Blumm and Mr. David H. Becker chronicle where natural resources law casebooks have been and where they are going in terms of theme, content, and pedagogical approach.  E-Mail to Rebecca, by Professor Dale D. Goble, takes a rough empirical look at the content of the new casebooks by comparing the types of resources discussed, the perspectives used, and the amount of material covered.  In What is Natural Resources Law?, Professor Robert L Fischman tackles the more theoretical question of where and how we draw the boundaries between natural resources law and other fields, especially environmental law.  Finally, Keeping an Eye on the Golden Snitch: Implications of the Interdisciplinary Approach in the Fourth Generation of Natural Resources Law Casebooks, by Professor Sarah Krakoff, explains why and how the new casebooks incorporate material from other disciplines such as history, science, economics, geography, and ethics.

Sarah M. Mercer
Editor-in-Chief