Use of Natural Resources in a Market Economy: Ethical and Legal Perspectives

The use of natural resources and the policy environment surrounding this use are informed by concepts derived from economic theory, extant technology, past uses, common law, statutory regulations, and descriptive ethics influenced by past and present social mores. As such, the uses of natural resources tend to reflect where society has been rather than where it is going. This is especially the case if we consider that existing laws and regulations controlling the allocation and utilisation of natural resources such as land, air, surface water, and groundwater are largely based on utilitarianism reflecting a worldview dating back to Greek antiquity. Given that utilitarianism and a worldview in which nature is perceived as immutable have become part of our legal foundation, technological changes now present ethical and economic problems that threaten part of this foundation. Within a market economy such as that of the United States, the legal environment regulating decisions regarding the use of natural resources contains contradictions that adversely affect the efficiency of allocative decision making. On the one hand, users of resources are urged to find the highest and best use of the resources and are supported by case law and legal precedent, while on the other, statutes based on alternative ethics increasingly prohibit certain uses of natural resources. Additionally, recent legislation, for example, the 1985 Food Security Act, is changing entitlement rules. Concurrently, legal doctrines such as public trust are challenging assumed private property rights. In this article I describe some of these ethical and economic problems while relating them to existing and emerging natural resources law and litigation. While doing so, I review the critical works of Jonas and Rawls. As opposed to utilitarians justifying their actions based on the intrinsic goodness or badness of the end(s) resulting from the action, Jonas and Rawls are ethical formalists seeking rules of right conduct that everyone performs as a matter of principle; see Taylor. In addition, I review the Public Trust Doctrine, and the manipulation of entitlement rules, as “tools” being used to address issues of environmental quality and resource utilisation. For example, see Calabresi and Melamed and Bromley.