Sanne H. Knudsen, Remedying the Misuse of Nature, 2012 Utah L. Rev. 141 (2012), https://digitalcommons.law.uw.edu/faculty-articles/16
Utah Law Review
ecosystems, natural resource damages
As currently conceived, natural resource damages are limited in scope; even in combination they cannot adequately remedy misuses of nature. Even so, these damages provide a good starting point for assessing the promise and flaws embodied in existing laws. By identifying the limits of current resource-related remedies, the changes required to better protect ecosystem health become clearer.
In search of a reformed natural resource damages law, Part I of this Article begins by exploring the idea that we should not misuse nature. It surveys current literature and explains how the idea would--if taken seriously--recast the ways we think about private property.
Part II sets the stage for a reformulated law of natural resource damages by noting the gaps and limits of key environmental statutes and of the common law of property. It focuses particularly on the law's failure to respect ecological functioning and the public's interest in private land. Part III surveys the law of natural resource damages, which provides useful elements for constructing a broader, more ecologically grounded remedy.
Part IV draws together the Article's various parts to outline an expanded remedy for misuses of nature. The assessment is necessarily broad brushed. Its contribution is not in proposing detailed answers but in getting the challenges on the table. Part IV considers eight such challenges, each of which is foundational to the problem of protecting the healthy functioning of ecosystems when those systems know no boundary between federal, state, tribal, and private lands.