Homesteading Rock: A Defense of Free Access under the General Mining Law of 1872

The Mining Law of 1872 is one of the most reviled federal land laws, regularly drawing attacks as anachronistic, corporate welfare, a relic of pioneer days, and a source of major environmental problems. Born out of the experience of the nineteenth century mineral rushes, the Mining Law allows individuals to privatize both the surface estate and the mineral rights to public land containing minerals (with some exceptions) without requiring a significant payment to the public treasury for the land This giveaway aspect of the law draws the loudest protests. The authors argue that it is inappropriate to measure the net value of mineral rights privatized by the gross revenue generated by the sale of extracted minerals. Only if the exploration and production costs are also considered can the net value be determined. Once these costs are considered, the net value of mineral rights privatized under the Mining Law is relatively small. In this Article, the authors argue that the attacks on the Mining Law misunderstand the statute\u27s institutional incentives. The mining industry is a heavily capital-intensive industry whose activities involve significant risks and long lead-times. As a result, mining firms are extremely vulnerable to expropriation, as their experience in much of the rest of the world amply demonstrates. The Mining Law creates an institutional structure that reduces the expropriation problem and forces owners of mineral lands to address the opportunity costs of their land-use choices by effectively selling the land in exchange for the production of information about the mineral resources under it rather than for money. By providing mineral rights owners with the option to receive the surface estate as well as the mineral rights for a nominal fee, the Mining Law helps deter opportunistic behavior by the government. Since expropriating a mineral rights owner who also holds the surface estate would reduce the value of all land titles, the Mining Law raises the cost of expropriation. Full title also solves incentive problems that exist where rights holders have more limited titles. Ownership of both surface and mineral estates gives the property owner the incentive to maximize the joint value of the two estates. If the mineral rights owner does not hold the surface rights as well, activities which are destructive of the surface estate are more likely to occur. Providing a straightforward, administrative system for privatizing mineral rights that does not allow the agency charged with privatization discretionary authority minimizes the opportunities for corruption as well. Given the prevalence of corruption in the mining industry elsewhere in the world, this is an important advantage of the Mining Law\u27s non discretionary approach. There are competing demands for lands containing mineral resources. A potential mine site may also be an ideal habitat for wildlife or a picture-perfect ski run. The Mining Law\u27s privatization of both surface and mineral estates solves the conflicting use problem by giving the owner of the mineral estate the surface rights as well. If mining will reduce the surface estate\u27s value, the mineral rights owner will then suffer the loss. Seen in this light, the nonmining uses of land privatized under the law (a frequent complaint of critics) actually demonstrates the success of the law at resolving these conflicts. Moreover, because the Mining Law does not require mining on land privatized under it, interest groups favoring preservation can use it to preserve the land. Finally, the Article addresses the claim that mining produces harm to neighboring lands. The authors show that only environmental spillovers unique to mining justify mining-specific restrictions on property use. The Article also tests the incentive theory developed against the history of modifications of the Mining Law (resource and land withdrawals), the quite different practice of the states with respect to their public lands, and by comparing the Mining Law to the other major nineteenth century land disposal laws, the Homestead Laws. Homesteading has been criticized for overly rapid privatization of land and for causing rent-dissipating races for property rights. The authors argue that the Mining Law avoids the problems of the Homestead Laws because the race it induces is a race for useful knowledge, not a race won by enduring hardship. The Mining Law also does not require that the land privatized be brought into production as the Homestead Laws did. The resource withdrawals (fuel and common minerals) can be explained by a combination of technical characteristics (e.g., the pool nature of oil and gas reserves) and interest group politics (military interest in controlling domestic oil supplies). Federal land withdrawals from Mining Law coverage also do not undercut the incentive analysis of the Mining Law, as these withdrawals are of land dedicated to particular uses by the federal government and acquired lands where allowing privatization raises serious agency problems. States\u27 failure to adopt a similar method for privatizing their mineral lands is also explained through a comparative analysis of state and federal agency costs

Regulating by Litigation: The EPA\u27s Regulation of Heavy-Duty Diesel Engines

In this Article, the authors provide a case study of heavy-duty diesel engine regulation under the Clean Air Act, which reveals how the Environmental Protection Agency (EPA) chooses various means of regulation at different times. The Article relates the EPA\u27s choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules

Hardrock Homesteads: Free Access and the General Mining Law of 1872

Most discussions of the US General Mining Law of 1872 begin with the premise that the statute is an outdated relic of 19th-century attitudes towards resources and should be replaced with a modern system of royalties, permits and concessions. In contrast, this article argues that the statute provides institutional mechanisms that resolve incentive problems created by government ownership of mineral resources. Instead of calling for radical change in US mining laws, the authors hold up the free access principle of the General Mining Law of 1872 as a model for privatisation of assets whose value is unknown

Bootleggers, Baptists &(and) Televangelists: Regulating Tobacco by Litigation

The bootleggers and Baptists public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the Baptists) with an economic interest (the bootleggers). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors televangelists and demonstrate that they play a pernicious role in regulation. The Article begins by showing how tobacco regulation through the 1980s fit the traditional bootleggers and Baptists public choice model. It then explores the circumstances that made it possible for the emergence of the televangelists as a regulatory partner that the bootleggers would prefer. The Article then criticizes televangelist-bootlegger bargains as likely to result in substantial wealth transfers from large, unorganized groups to the coalition partners. It also shows how televangelist-bootlegger coalitions are more pernicious than bootlegger-Baptist coalitions. Finally, it concludes with suggestions for how to make televangelist-bootlegger coalitions less durable

Green Jobs Myths

A rapidly growing literature promises that a massive program of government mandates, subsidies, and forced technological interventions will reward the nation with an economy brimming with green jobs. Not only will these jobs improve the environment, but they will be high paying, interesting, and provide collective rights. This literature is built on mythologies about economics, forecasting, and technology. In this Article, we survey the green jobs literature, analyze its assumptions, and show how the special interest groups promoting the idea of green jobs have embedded dubious assumptions and techniques within their analyses. Before undertaking efforts to restructure and possibly impoverish our society, careful analysis and informed public debate about these assumptions and prescriptions are necessary

Regulating by Litigation: The EPA\u27s Regulation of Heavy-Duty Diesel Engines

In this Article, the authors provide a case study of heavy-duty diesel engine regulation under the Clean Air Act, which reveals how the Environmental Protection Agency (EPA) chooses various means of regulation at different times. The Article relates the EPA\u27s choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules

Choosing How to Regulate

In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency\u27s incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations. Using a case study of EPA\u27s regulation of heavy-duty diesel engines, the Article examines EPA\u27s choices over thirty years as a means of testing the proposed theory. Finally, the Article concludes with a critique of allowing agencies to choose how they will regulate because the choice allows agencies to evade constraints imposed by Congress and the President and so diminishes political accountability

Hardrock Homesteads: Free Access and the General Mining Law of 1872

Most discussions of the US General Mining Law of 1872 begin with the premise that the statute is an outdated relic of 19th-century attitudes towards resources and should be replaced with a modern system of royalties, permits and concessions. In contrast, this article argues that the statute provides institutional mechanisms that resolve incentive problems created by government ownership of mineral resources. Instead of calling for radical change in US mining laws, the authors hold up the free access principle of the General Mining Law of 1872 as a model for privatisation of assets whose value is unknown