In practice, our laws have proven unequal to the lofty objectives of preserving a legacy of public natural resources for our children or achieving sustainable use of these resources. There are many factors that contribute to this shortfall, but inherent inadequacies in the design of these statutes cannot be overlooked as an important determinant. Despite the statutes' broadly stated aspirations toward sustainability and protection of the interests of future generations, only a handful of these statutes include strong and enforceable mandates for sustainable resource use. Many of these statutes accord natural resource-management agencies broad discretion to balance and permit a long list of competing uses of a given resource, including degrading and depleting uses. They lack any clear mandate that the agency protect any particular quantity or quality of a given resource for today, much less for future generations. Thus our laws often promise far more than they can deliver. It should therefore come as no surprise that in practice, many of our public natural resources are declining in quantity and quality. Without an effective legal mechanism to check the decline, this pattern of incremental resource depletion and degradation will likely continue.
This article considers the possibility that we need, and should consider enacting, a law that provides an effective check on the degradation and depletion of public natural resources across the board. This article considers whether the National Environmental Policy Act (NEPA), reinforced with a substantive standard of protection, would be the best tool for defining and protecting a public natural resource legacy.
Alyson C. Flournoy, Heather Halter & Christina Storz, Harnessing the Power of Information to Protect Our Public Natural Resource Legacy, 86 Tex. L. Rev. 1575 (2008), available at http://scholarship.law.ufl.edu/facultypub/56