Resource management and the rule of law : the role of the courts

Abstract

This study examines the ways in which legal remedies can be used in order to achieve the goals of resource management. However, the discussion is confined to remedies available under the common law. The introduction sets out the background to the study and defines the nature of the problem. Chapter One outlines the constitutional principles underlying the legal system which define the scope of the courts' power. An appreciation of the courts' constitutional position is essential for understanding both the limits and the potential of the courts' role.

Chapter Two discusses the major private law actions applicable to resource management problems. These are the torts actions of trespass, nuisance, public nuisance, negligence, breach of statutory duty, and the rule in Rylands v Fletcher. It concludes that their very nature as private law actions entails serious disadvantages from the perspective of resource management which is concerned with the public interest. Of these actions public nuisance is best suited to dealing with resource management problems.

Chapter Three deals with the public law remedy of judicial review. This remedy is designed to ensure that administrative agencies operate within the limits of power delegated to them by the legislature. Because of the nature of this remedy, resource management issues cannot be examined on their merits. Nevertheless, in spite of its limitations, judicial review can be a useful tool for achieving resource management goals.

The final chapter examines the arguments for and against expanding the role of the courts in resolving resource management disputes. It focuses on the Michigan Environmental Protection Act as an example of potential measures in overcoming the limitations of the common law in dealing with resource issues.