Friday, February 17, 2012
One hundred and forty years after being singed into law by President Grant, a 19th century statute is still one of the primary means of regulating mining on federal lands, and permits mining companies to
extract minerals without paying royalties, while limiting environmental regulation. Under the General Mining Act of 1872 individuals and corporations have “free and open access” to prospect in western federal lands and, for a nominal fee, may stake a claim upon any valuable mineral deposit they find.
Although federal lands designated for specific purposes, such as National Parks and wildernesses, are closed to prospecting, the law has nonetheless allowed mining companies to stake claims to millions
of acres of federal land.
Despite the generosity of the law, environmental statutes such as NEPA and the Clean Water Act still apply to mining, and federal permitting is required before prospecting begins. However, because the law guarantees “free and open access” to non-designated federal lands, in the words of a federal judge, “the development of mineral resources in the national forests may not be prohibited or unreasonably circumscribed.” Furthermore, because the law gives mining preference over other uses of federal land, as a former chief of the Forest Service testified before Congress, “it is nearly impossible to prohibit mining under the current framework of the 1872 mining law, no matter how serious the impacts might be.”
Thus, an industry ranked by EPA as the most toxic polluter in the country, and one that has polluted more than 40 percent of western watersheds, enjoys almost unlimited authority to exploit public land. Rivers and fisheries, habitats and even National Parks are threatened and/or destroyed by the continued existence of the law, and hundreds of thousands of abandoned mines pockmark the western landscape. Although mining companies are required to post cleanup bonds, they are frequently insufficient to cover comprehensive remediation, and if the company is bankrupted, taxpayers foot the bill.
Significant legislative actions have already limited some of the law’s potential impacts. For example,
a 1920 amendment eliminated hydrocarbons and a number of other substances from the list of
claimable minerals. More recently, a 1994 congressionally imposed moratorium on accepting patents for mining claims means that claimholders can no longer gain title to surface and mineral rights, although they may still extract minerals within the claimed area. A number of rules and regulations have also limited the law’s reach. Perhaps most importantly, the Bureau of Land Management has removed a patchwork of important lands from the purview of the law, and is in the process of ensuring that other valuable lands, such as those surrounding the Grand Canyon, are also not claimable.
Yet while a number of bills have been introduced in both the current and previous Congresses, no comprehensive action has been taken to modernize regulation of the mining industry. Surly it must be possible to replace this outdated statute with a new law that more equitably balances the need for a
domestic mining industry with environmental protectionism, and allows the entire country, and not just the mining industry, to benefit from the vast resources beneath federal lands?
Wednesday, February 15, 2012
Hot off the wire, the 2012 John D. and Catherine T. MacArthur Awards for Creative and Effective Institutions have just been announced. Among the big winners were our friends at the NYU Furman Center:
We are delighted to announce that the John D. and Catherine T. MacArthur Foundation just named NYU's Furman Center for Real Estate and Urban Policy a recipient of the MacArthur Award for Creative and Effective Institutions. This distinguished award recognizes the Furman Center's excellence in providing objective, policy-relevant research to address the challenges facing neighborhoods in New York City and across the nation.
The award also is an investment into the Furman Center's future. It comes with a grant of $1 million, which we will use to build data and research partnerships that will allow us to broaden the geographic scope of our research; strengthen and expand our policy analysis; and improve our communications and data management infrastructure. This provides us with a remarkable opportunity to expand our research beyond New York City to help policymakers in Washington and across the nation make more effective housing and community development investments and policies.
By my rough count, about 6 of the 15 awards went to groups for land use, housing, or environmental projects. Here are some of the others:
Albertine Rift Conservation Society – Kampala, Uganda ($350,000) champions collaborative conservation initiatives in one of the world’s most important ecosystems;
Business and Professional People for the Public Interest – Chicago, Illinois ($750,000) works to strengthen impoverished communities, preserve and increase affordable housing, improve Chicago schools and promote open, honest government in Illinois;
Center for Responsible Lending – Durham, North Carolina ($2 million) protects homeownership and family assets by working to eliminate abusive financial practices and consumer products;
Community Investment Corporation – Chicago, Illinois ($2 million) provided assistance to developers of rental housing in low- and moderate-income neighborhoods in Chicago
Conservation Strategy Fund – Sebastopol, California ($750,000) trains conservation professionals in economics and policy analysis to strengthen and protect the environment;
Congratulations to the winners; and thanks to Hattaway Communications for the heads-up.
There is a growing trend of Tea Party activism against the idea of sustainable energy. Whilst many claim to support environmental protection, Tea Partiers object to what they see as attempts by foreign international bodies, coordinating with local environmental groups and the government, to restrict private property rights. Concerned Tea party members often refer to the UN’s “Agenda 21” and what they see as its attempts to subordinate the rights of man to the needs of the environment.
Agenda 21 is comprehensive plan of action that calls for the integration of developmental and environmental concerns to fulfil basic needs and improve living standards for all. It has been adopted but never ratified in the United States. The Tea Party appears to be very concerned with Section I chapter 7 which refers to sustainable human settlements. The stated goals are promoting housing for all and promoting sustainable construction, amongst other things. Even without considering the fact that “promoting” is a somewhat passive word that certainly does not evoke the idea that there will be “enforcement” of these objectives, the provision seems harmless.
Yet the agitated tea party members object to the plan whose method of implementation includes broad concepts such as, education on patterns of consumption that do not completely deplete natural resources, one member sees the plan as “caging the humans whilst the animals run free.” Some tea party members see the non-binding UN resolution as merely a hoax to redistribute wealth. Others have gone so far as to liken the mandate of Agenda 21 to communism. Claiming it will result in government rationing of food and water a concept that they believe is at its core, Un-American.
Proponents of the movement use striking images of crowded houses and maps of the United States with nary a trace of the human population to demonstrate what they believe is the end goal of Agenda 21. Opponents to sustainable development claim, without evidence, that the program is already being implemented in states like New Jersey as part of a broader conspiracy theory, despite the fact that the sustainability in New Jersey does not indicate any ties to international or federal efforts to attain sustainability.
In New Jersey, Tea Partiers oppose the State’s proposed Strategic Plan and efforts by an organization called Sustainable New Jersey which offers municipalities monetary grants conditioned on certain actions, ranging from innocuous energy audits and waste reductions to contested sustainable community planning, collaborative land preservation programs, and carbon reduction targets. The Tea Party finds fault with Sustainable New Jersey’s mission to embrace social justice and fairness. Among their chief complaints is a recommended ordinance reducing lot size and placing homes closer together. Criticism varies from the “mild” allegation that such programs transfer America’s wealth to developing countries to more extreme charges that the government is clearing the way for insider businesses to exploit the land’s natural resources. The program is entirely voluntary and the New Jersey State government and Wal-Mart are its two largest benefactors.
Perhaps the concerns of the Tea Party would be more convincing were they grounded in pertinent law. If even some states choose to conform to international environmental standards the United States is, after all, based on a federal system that allows this. Even a cursory glance anywhere indicates that Agenda 21, which as an example demands huge new sources of material wealth to developing countries, has had little if any impact in the United States and the concept of sustainable development appears much less sinister than its opponents, who believe it is a cover up, would have you believe. In this world, a world of limited resources, it is probably a good idea for us all to be more considerate of our consumption patterns both in terms of resources and space as opposed to clinging to the idea that the world is trying to dupe us into giving up our land.
Tuesday, February 14, 2012
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- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
- Jesse Richardson on Local Regulation of Hydraulic Fracturing
- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire
- APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy