Utton, Albert E.

English

University of New Mexico

Volume 23 
Issue 3 Symposium on Environmental Management: The Policy Perspective 
Summer 1983 
Regional Conflict and National Policy, Kent A. Price, Ed. 
Albert E. Utton 
Recommended Citation 
Albert E. Utton, Regional Conflict and National Policy, Kent A. Price, Ed., 23 Nat. Resources J. 735 (1983). 
Available at: https://digitalrepository.unm.edu/nrj/vol23/iss3/19 
This Book Review is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has 
been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For 
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BOOK REVIEWS
REGIONAL CONFLICT AND NATIONAL POLICY
KENT A. PRICE, Ed.
Baltimore: The Johns Hopkins University Press. 1982. Pp. 142. $6.95,
S.C.
Conflicts among states and regions over natural resources seem to be
growing both in number and intensity. This is the important theme this
book explores by bringing together an outstanding group of contributors
who discuss History and Perspective (Nathan Rosenberg); Energy "Haves"
and "Have-nots" (Hans H. Landsberg); Typical Cases Involving Natural
Resources (Allen V. Kneese); The Legal Structure of Interstate Resource
Conflicts (Richard B. Stewart); Externality, Conflict, and Decision (Clif-
ford S. Russell); and Epilogue (Gilbert F. White). There is no doubt that
the conflicts are real, important, and often heated, in asking the question
of how effective are our institutions in mediating these disputes. The
authors look primarily to the courts, the Congress, and the market place.
The courts seek guidance from the commerce clause of the Constitution
itself, in an effort to avoid fragmentation of the national economy and,
ultimately, to allow the market place to determine the directional flow
and priorities of the economy. However, as Stewart points out, the market
is not foolproof. He cites environmental degradation "as an especially
telling instance of market value" (p. 97) and concludes that market failure
is one of the reasons that the Supreme Court may defer to the Congress
to resolve resource disputes.
In the Montana severance tax case, Commonwealth Edison Company
v. Montana, for example, the court upheld the tax because it was non-
discriminatory-"it applied equally to coal consumed within and without
the state" (p. 94), and left the final question of resolving the dispute to
the Congress while emphasizing "the inability of the Court to determine
the ultimate incidence of tax measures or the policy question of how
states should go about allocating the burdens of taxation" (p. 95). Stewart
concludes that "as long as a state takes care to adopt measures that do
not discriminate on their face against out-of-state citizens or enterprises,
the Supreme Court apparently will not invalidate the measures as an
unconstitutional burden on commerce" (p. 95). This judicial deference
to the states, however, does not leave a legal void; it simply leaves the
resolution of such regional natural resources disputes to the legislative
arm of the government, the Congress, to resolve.
In recent decades, Congress has exercised its powers to deal with
natural resources development extensively, by delegating broad respon-
sibility to federal administrative agencies such as the Department of the
NATURAL RESOURCES JOURNAL
Interior, the Department of Energy, and the Environmental Protection
Agency. Stewart sees the judicial deference to Congress as being desirable
in some types of regional disputes, and undesirable in others. "The
courts," he argues, "should not in the absence of discrimination invalidate
state regulations or taxation of natural resource development as an un-
constitutional burden on interstate commerce. They also should decline
to hold that such measures are preempted by federal law unless Congress
expressly so provided. But in other contexts, such as interstate pollu-
tion, . . . courts should take the lead in confronting problems that cannot
simply be left to the states or to Congress. In still other areas, including
preservation of scenic resources, and hazardous waste disposal, new in-
stitutional approaches seem needed" (p. 105).
Allen Kneese provides some very illuminating case studies, one dealing
with the Waste Isolation Pilot Plant controversy in New Mexico, which
involves a federal effort to locate a radioactive waste site in that state.
He also describes the fascinating interplay between the federal government
and the Rocky Mountain Southwest region in resolving the international
dispute with Mexico over salinity levels of the Colorado River, pointing
out "the internal forces are especially clear in this agreement. The basin
states seem to have been determined not to lose a single drop of water
to Mexico, no matter what it might cost the general taxpayer in the United
States" (p. 66). In his discussion of the Montana severance tax case,
Kneese raises some uneasy questions, suggesting that while "the Court's
ruling permits states to set rates as high as they wish, on the other hand,
if the populous, net-energy-consuming states could get political support,
they could decide that less populous states like Montana should have a
rate of close to zero" (p. 74). This is the other side of the coin from the
Court holding that the "appropriate level or rate of taxation is essentially
a matter for legislative, not judicial, resolution" (p. 72).
The stresses between state, region, and nation over natural resources
are not going to go away. One that is now emerging even after this book
was published is that dealing with interstate groundwater. The court is
just now beginning to grapple with this problem, reaching for a delicate
adjustment of federal and state roles in the dispute using the tool of the
commerce clause to protect the federal economy, while not yet having
fully thought through how to reconcile the commerce clause with the
federal common law of equitable apportionment which provides each
state an exclusive share of interstate water.
This is a much needed book to help clarify our thinking about regional
conflict and national policy. How do we establish the criteria for making
principled decisions as to when national policy can dictate that the en-
vironmental quality of a state should be degraded (for a radioactive dump
[Vol. 23
July 1983] REGIONAL CONFLICT AND NATIONAL POLICY 737
site in New Mexico) while simultaneously dictating that another state
cannot degrade its environmental quality (to preserve a national park in
Utah), also for the national interest? The book has many good insights
which inform, ranging from what constitutes a region, to the observation
that regions do not even exist legally: "states, not regions, are the entities
recognized by the law" (p. 3), to a most helpful introduction and overview
by Kent Price. This is a thoughtful book, a helpful book, and one which
is provocative as we try to maintain the delicate balance between national
integrity and regional and state viability.
ALBERT E. UTTON
The University of New Mexico


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