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Publications

Viewing all publications in Natural Resources
  • Deregulation Run Amok
    Report

    Deregulation Run Amok

    Trump-Era Regulatory Suspensions and the Rule of Law

    By Bethany A. Davis Noll and Alec Dawson
    November 13, 2018

    Our report provides a survey of the legality of Trump Administration’s regulatory suspensions. Looking at a number of cases, we discuss the administration’s disregard for notice-and-comment requirements, statutory restrictions, and the reasoned explanation requirement. We also lay out some of the challenges facing advocates, and the strategies by which agencies have evaded review.

  • Federal Lands and Fossil Fuels
    Academic Article/Working Paper

    Federal Lands and Fossil Fuels

    Maximizing Social Welfare in Federal Energy Leasing

    By Jayni Hein
    March 23, 2018

    The Department of the Interior is tasked with managing the nation’s mineral resources and must earn a “fair market value” for the use of federal lands and resources. But in recent years, Interior’s coal, oil, and natural gas leasing programs have been criticized for failing to keep pace with developments in modern technology, shortchanging taxpayers, and failing to adequately account for climate change and other environmental effects. This article, published in the Harvard Environmental Law Review, suggests a rational path forward for federal fossil fuel leasing. Just as a private company would seek to maximize net revenue in its operations, Interior should seek to manage its program to provide maximum net benefits to the public, to whom public resources belong. This includes accounting for all of the costs and benefits of leasing—including environmental and social costs—and adjusting the fiscal terms of its fossil fuel leases to recoup unmitigated externality costs.

  • Monumental Decisions
    Academic Article/Working Paper

    Monumental Decisions

    One-Way Levers towards Preservation in the Antiquities Act and Outer Continental Shelf Lands Act

    By Jayni Hein
    March 19, 2018

    In new legal scholarship published in Environmental Law, Jayni Hein argues that the powers granted to the President in the Antiquities Act and Outer Continental Shelf Lands Act (OCSLA) operate in one direction only: towards preservation. Presidents do not have the authority to rescind or diminish national monument designations, nor to re-open previously withdrawn areas to offshore leasing. Congress, alone, retains this authority over public lands.

  • Mineral Royalties
    Academic Article/Working Paper

    Mineral Royalties

    Historical Uses and Justifications

    By Jayni Foley Hein and Caroline Cecot
    February 28, 2018

    Governments and private landowners have collected royalties on mineral resources for centuries. When comprehensive measures to account for the environmental externalities of mineral extraction are politically or practically unavailable, federal and state governments may consider adjusting royalty rates as an expedient way to account for these externalities and benefit society. One key policy question that has not received attention, however, is whether a royalty rate can and should be manipulated in this way, assuming statutory discretion to do so.

    This article, published in the Duke Environmental Law & Policy Forum, fills that gap by evaluating the argument for increasing federal or state fossil fuel royalty rates through historical, theoretical, and practical lenses. To that end, this article in turn considers the meaning of royalties, the economic justifications for royalties, the legislative history of the implementation of federal royalties, and the considerations that private landowners have relied upon in setting royalties. This article concludes that it would be appropriate for governments to adjust mineral royalty rates to account for negative externalities not otherwise addressed by regulation or to otherwise promote public welfare. Such use of royalties is consistent with the historical record. Royalties have been used as pragmatic policy tools from almost their inception, and federal and state governments have often exercised their existing statutory discretion to adjust mineral royalty rates to promote public welfare.

  • Muddying the Waters
    Report

    Muddying the Waters

    How the Trump administration is obscuring the value of wetlands protection from the Clean Water Rule

    By Jason Schwartz and Jeffrey Shrader
    September 28, 2017

    In 2015, the Environmental Protection Agency and Army Corps of Engineers revised the definition of the “waters of the United States” as part of the Clean Water Rule. This revised definition was expected to increase the wetland area subject to protection under the Clean Water Act, and an economic analysis conducted by the agencies at the time showed that the benefits of the rule would substantially outweigh the costs. Under the Trump administration, the agencies now propose to repeal the 2015 Clean Water Rule and have issued a revised economic analysis in support of that decision. In the new analysis, the agencies now claim that the majority of the benefits in the 2015 analysis cannot be quantified, making it appear that the Clean Water Rule is not cost-benefit justified. The agencies have violated many of their own requirements for conducting economic analysis to arrive at this conclusion, and a more comprehensive assessment of the evidence shows that the 2015 Clean Water Rule is still cost-benefit justified. Repealing the 2015 Rule would forgo substantial environmental and economic benefits.