The Legal Structure of Interstate Resource Conflicts
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Description
We have explored the history of U.S. regional conflict and looked at a few of its modern manifestations through the prism of the energy “crisis” that began in 1973-74. In the last chapter three case studies of the current conflicts were examined in some detail. The case of Colorado River salinity, the Montana coal tax, and the Waste Isolation Pilot Plant in New Mexico display important differences, but one striking similarity is that all three conflicts encountered the legal process at some point, whether through Indian and international treaties or in the courts, up to and including the U.S. Supreme Court. As such conflicts typically engage the legal process, this chapter examines the legal structure for dealing with regional resource conflicts between and among states and their political subdivisions (regions as such have not legal standing). In the past, the federal courts have taken the initiative in deciding controversies between states and in invalidating state regulation and taxation that restrict the free flow of capital and labor through the national economy. Litigants are demanding that the federal courts play a similar role in resolving interstate resource conflicts. During its 1980 term, the U.S. Supreme Court heard no fewer than four cases involving such controversies. In disposing of these cases, however, the Court made clear that the federal judiciary will not play a major role in resolving conflicts among states over natural resources. Unless Congress intervenes, states will have considerable freedom to make independent decisions about the development and taxation of resources within their borders. Political questions in the United States almost inevitably evolve into legal questions, but the courts may decide to remit conflicts for resolution by political and economic processes. In the context of interstate resource conflicts, this judicial retreat is desirable in many respects. For example, as we will see, state taxation and regulation of natural resources that do not by their terms discriminate against other states should be substantially immune from federal judicial scrutiny. But there is an important class of cases—those involving out-of-state impacts that are not economic—that calls out for a strong federal judicial role. Transboundary pollution is an important example. In most cases, informal bargaining among states cannot resolve conflicts such as that concerning acid rain, or river salinity, in part because of the large number of states involved and because upwind or upstream states have little incentive to bargain, absent offers of “bribes” or side payments from downwind or downstream states. In theory, Congress has ample authority to resolve such conflicts through legislation, but in practice substantial constitutional and political barriers bar effective legislative solution. The federal judicial retreat in this area has created a vacuum that must be met by new decision-making mechanisms. The operation of the U.S. federal system historically has been a dialectical process, with alternating surges of centralization and decentralization playing back on one another. The country now is undergoing a surge of decentralization that in my opinion is largely healthy. But the choice is not a simple, sweeping election between state and federal authority. The role of different branches of government—legislative, judicial, and administrative—must be considered, along with the particular problem at issue. Traditional mechanisms of accommodation and resolution have been overstressed by some of the conflicts generated by increased energy and raw material prices, the resulting pressures to develop the sparsely populated and scenic West, environmental insults imposed by modern technologies, and heightened concern about environmental degradation. The system is far from radical failure, but the adequacy of our institutions to deal with such conflicts clearly must be reexamined.
Source Publication
Regional Conflict and National Policy
Source Editors/Authors
Kent A. Price
Publication Date
1982
Recommended Citation
Stewart, Richard B., "The Legal Structure of Interstate Resource Conflicts" (1982). Faculty Chapters. 1710.
https://gretchen.law.nyu.edu/fac-chapt/1710
