The New Law of Geology: Rights, Responsibilities, and Geosystem Services
| Date | 01 May 2022 |
| Author | Keith H. Hirokawa |
52 ELR 10380 ENVIRONMENTAL LAW REPORTER 5î2022
ARTICLE
by Keith H. Hirokawa
SUMMARY
Humans are inescapably dependent upon geological processes and structures. Many of these interactions
are direct, such as when we cultivate the soil or mine the earth. However, the terms of our interaction with
geology are usually invisible and unacknowledged. Although the relationships are complex, a ïŹrm under-
standing of the environment and our dependence on it cannot ignore the interconnections between earthâs
systems, including subsurface geology, vegetation, oceans, and atmosphere. This Article suggests serious
consideration of geosystem services, an ef fort to identify the value to humans of processes occurrin g through-
out the geosystem for the servicesânot just the goodsâthat they provide. It proposes a legal regime of geo-
system services, and illustrates the immense value of geosystem beneïŹts that are at risk when they are not
expressly included in decisionmaking processes.
THE NEW LAW OF GEOLOGY:
RIGHTS, RESPONSIBILITIES, AND
GEOSYSTEM SERVICES
Keith H. Hirokawa is Associate Dean of Research and Scholarship and Professor of Law, Albany Law School.
Civilization ex ists by geological consent, subject to cha nge
without notice.
â Will Durant1
We live on a dynamic planetâone that is con-
stantly shifting and transforming, sometimes
giving way, but other times struggling against
the various pressures that come with physica l existence.
Mountains thrust at îrst to the earthâs surface through
a struggle with pressure a nd time, then slowly crack and
crumble, leaving to living thin gs the task of sifting through
the remains in search of food a nd shelter and other life-
supporting materials. Wind and water chisel away at the
1. Will Durant, What Is Civilization?, Lîîîîî Hîîî J., Jan. 1946, at 104.
landsc ape, moldin g and supporting the terrain, remov-
ing and moving materials, and even trapping information
about life and events to preserve an evolutionary histor y.
Heat and pressure drive planetar y transformations over
time, in many cases at a pac e and timescale that renders
them imperceptible (to people), leaving only clues in the
rocks and ice about how the planet sustained life (and how
people have survived). îe study of such phenomena in the
geologica l sciences largely operates behind the scenes, a nd
may be easily missed.
Humans are inescapably dependent upon geological
processes and structu res. Many of our interactions with
geology are direct, such as when we cultivate the soil or
excavate the earth to ex pose minerals that have value in the
marketplace. However, the terms of our interaction with
geology a re usua lly invisible and un acknowledged. We
walk on soil that lies over minerals in which organic mat-
ter is decomposing, water is moving, and plants are sprout-
ing. We build over geological structures, typically with the
hope that the earth will support the weight of the built
environment. We recreate on, manipulate, and appreciate
Authorâs Note: The author would like to thank Max Lind-
sey for his exceptional work on earlier drafts of this Article.
The author would also like to thank Dr. Krysia Kornecki and
Profs. J.B. Ruhl, Cinnamon Carlarne, Karrigan Börk, and
Jonathan Rosenbloom for their insightful comments, as well
as Michelle Zaludek, Kathleen Anderson, Conor Lynch,
Evan Levesque, and Adam Herron for their thorough re-
search assistance.
Copyright © 2022 Environmental Law InstituteŸ, Washington, DC. Reprinted with permission from ELRŸ, http://www.eli.org, 1-800-433-5120.
5î2022 ENVIRONMENTAL LAW REPORTER 52 ELR 10381
materials from the earth, typically without a sophisticated
regard for their physical and temporal contingencies.2
In the meantime, life happens, life ends; t he cycle
goes on. Although the relationships are often complex, it
would be insincere (or worse, folly) to think that a îrm
understanding of the environment or our dependence on
it could ignore the interconnections between earth âs sys-
tems, including subsurface geology, vegetation, oceans,
and atmosphere.3 And yet, although the ea rth âs geological
integrity is constantly, critically, and undeniably impor-
tant, it often goes unacknowledged.
Sometimes, we are forced to reckon with these interac-
tions. La ndslides, ground subsidence, volca nic erupt ions,
îoods, and earthquakes are very noticeable when they
result in the loss of human life. Beyond natura l disasters,
geological structures can failâ at least, these structures
may âfailâ to per form in the way we had hoped. In these
situations, it may have been assumed that the geologic
structure would perform in a certain way. Perhaps builders
ignored the potential importance of observed water move-
ment, or historic slope instability, or even past excavation
at or around the site, when assessing the structu ral integrity
of the earth. Of course, u nderground circumstances are out
of view and, in many cases, have been deemed a mystery.4
But more importantly, the law often fails to provide an
incentive to assess ground reliability and other important
contributions geosystems provide to human well-being.
Given that the relationship between human well-
being and geological serv ices is a largely unaddressed
area of un fathomable economic, ec ological, and social
importance,5 this Article suggests serious consideration of
2. Books celebrating the value of geologic resources often focus on the role
that particular mineral discoveries have played in the civilization of humans
and development of tools. See, e.g., Eîîî Cîîîîîî, Fîîîî Mîîîîîîî Tîîî
Cîîîîîî îîî Cîîîîî îî Hîîîîîî 6 (2012):
Humanityâs transformation of the environment began with the do-
mestication of plants and animals, but as civilization moved from
subsistence farming to urban living, the manufacture of goods, and
trade, the emphasis shifted to minerals; stone for building; met-
als for tools and weapons, and later machinery; hydrocarbons for
energy; earths, ores, and salts for industry; and precious and semi-
precious stones and metals for currency and adornment.
3. Rîîîîî M. Hîîîî, Tîî Sîîîî îî Eîîîî 256 (2012):
[T]he last half-billion years have seen the most astonishing inter-
play between life and rocksâa coevolution that continues with a
vengeance in the age of technological man. Aeons ago rocks, water,
and air made life. Life, in turn, made the atmosphere safe to breathe
and made the land green and safe to roam. Life turned the rocks
into soils that have, in turn, nurtured life and become home to an
ever-widening array of îora and fauna.
4. See, e.g., Marengo Cave Co. v. Ross, 10 N.E.2d 917 (Ind. 1937) (plaintiî
landowner not responsible for knowing that neighbor occupied caves that
extended under plaintiîâs property for purposes of adverse possession).
5. See, e.g., Unai Pascual & Caroline Howe, Seeing the Wood for the Trees: Ex-
ploring the Evolution of Frameworks of Ecosystem Services for Human Wellbe-
ing, in Eîîîîîîîî Sîîîîîîî îîî Pîîîîîî Aîîîîîîîîîî: Tîîîî-Oîîî îîî
Gîîîîîîîîî 3, 9 (Kate Schreckenberg et al. eds., Routledge 2018) (recog-
nizing that by focusing on the biotic, without regard for abiotic components
of development pathways, research on ecosystem services âmay perhaps have
limited some of its potential policy uptake in relation to poverty allevia-
tionâ); Jessica Owley, îe Use of Property Law Tools for Soil Protection, in Iî-
îîîîîîîîîîî Yîîîîîîî
îî Sîîî Lîî îîî Pîîîîî 339 (Harald Ginzky et
al. eds., Springer 2018) (noting that although all conservationists agree that
soil protection is critical for health, prosperity, and adaptation, it does not
get the same attention in the law as other resources).
the value of geological structures and processes through
the framework of ecosystem services. âEcosystem ser-
vicesâ constitutes the recent eîort to better understa nd
the risks of human disruption of natural systems by rec-
ognizing the value that ecosystems provide to human life
and well-being.6 îe research methods of ecos ystem ser-
vices enlighten the observations from ecology with eco-
logical economics, resulting in a better understanding of
how and why natural processes are critically valuable.7
îe study of ecosystem services adds to past iterations of
natural resource economics by identifying the value of
the servicesânot just the goodsâthat nature provides.8
Geosystem services, likewise, is an eîort to identify the
value to humans of natural processes occurring through-
out the geosystem for the services ânot just the goodsâ
that they provide.
Although the Ar ticle is the îrst to propose a legal regime
of geosystem services, t he idea of evaluating ecosystem
services has been applied to the services provided by geo-
logical processes, and continues to emerge in the scientiîc
literature.9 Indeed, because the point of ecosystem services
is particularly persuasive in the case of geological services,
the ecosystem services analysis provides valuable insig hts
into the immense value of geosystem beneîts that are at
risk when they are not expressly included in decisionmak-
ing processes.10 Accordingly, the îrst section of the Article
broadly identiîes the beneîts people receive from the geo-
system, and provides a framework for understanding a n
array of geosystem services.11
Based on this review of the va lue of a functioning geo-
system, t he second section explore s the principles of an
eîective law of geosystem serv ices. Such a legal system
6. Gretchen C. Daily et al., Ecosystem Services: Beneîts Supplied to Human Soci-
eties by Natural Ecosystems, 2 Iîîîîî Eîîîîîî 1, 2 (1977); Robert Costanza
et al., îe Value of the Worldâs Ecosystem Services and Natural Capital, 387
Nîîîîî 253, 253 (1997); Mîîîîîîîîî Eîîîîîîîî Aîîîîîîîîî, Eîîîîî-
îîîî îîî Hîîîî Wîîî-Bîîîî: Sîîîîîîîî v (2005).
7. J.B. Rîîî îî îî., Tîî Lîî îîî Pîîîîî îî Eîîîîîîîî Sîîîîîîî 24 (2006);
James Salzman et al., Protecting Ecosystem Services: Science, Economics, and
Law, 20 Sîîî. Eîîâî L.J. 309, 311 (2001).
8. A perspective that focuses only on goods (or, the production services
from an ecosystem) tends to ignore or even hide the other valuable ben-
eîts we receive from functioning ecosystems. See, e.g., Steven Banwart et
al., Soil Processes and Functions Across an International Network of Critical
Zone Observatories: Introduction to Experimental Methods and Initial Re-
sults, 344 C.R. Gîîîîîîîîî 758, 758 (2012) (âTraditionally, soils have
been largely managed with a single use in mind, primarily for food, feed
or îbre production.â).
9. C.C.D.F. (Derk) Van Ree et al., Geosystem Services: A Hidden Link in Ecosys-
tem Management, 26 Eîîîîîîîî Sîîîî. 58 (2017) (discussing the scarcity
of research on geosystem beneîts).
10. Gretchen C. Daily et al., Ecosystem Services in Decision Making: Time to
Deliver, 7 Fîîîîîîîî Eîîîîîî î Eîîâî 21, 23 (2009) (âîe main aim in
understanding and valuing natural capital and ecosystem services is to make
better decisions, resulting in better actions relating to the use of land, water,
and other elements of natural capital.â).
11. îis Article often collapses the distinctions between ecosystem services, geo-
system services, and natural services, because the literature on these subjects
is so intimately related. Each of these terms refers broadly to the idea that
natural systems provide services that are critical and valuable to human life
and well-being. Where the more speciîc term âgeosystem servicesâ is used,
it primarily refers to those services that are speciîcally traced to geological
structure and processes. îe terms âecosystem servicesâ and ânatural ser-
vicesâ typically refer more generally to the literature, which predominantly
focuses on services from ecosystems.
Copyright © 2022 Environmental Law InstituteŸ, Washington, DC. Reprinted with permission from ELRŸ, http://www.eli.org, 1-800-433-5120.
52 ELR 10382 ENVIRONMENTAL LAW REPORTER 5î2022
would at minimum require an information-gatherin g exer-
cise to assess the manner in which changes to geological
structures and cycles (such as by mining, construction,
water withdrawal, etc.) produce systemwide impacts and
interfere with other beneîts other wise derived from geo-
system services. In addition, an eîective regime would
consider valuation of geosystem services, provide a means
to manage trade oîs, a nd eva luate the dist ribution of valu-
able geosystem services in a n equitable manner. Finally, the
Article looks to the ways current law governs interactions
with geosystem structure and function to assess how eîec-
tive law has been in capturing geosystem service priorities,
where law has failed, and where opportunities lie for inte-
grating geosystem ser vices into the current legal regime.
îis Article is not intended to catalogue a ll of the ben-
eîts we derive from geosystem services or the laws that
regulate geosystem integrity. Indeed, due to the pervasive
character of our geological relia nce, an exhaustive list of
laws relevant to dirt, rock, water, support, and other geo-
system processes would be fatally extensive.12 Nevert heless,
there is a clear beneît to laying out the foundations and
framework for geosystem services regulation. Learning
lessons from past regulation al lows for a more productive
dialogue on how to structure a decisionmaking framework
that prioritizes and accounts for disruptions in geos ystem
services beneîts.13 Managing geos ystem services in t he law
can facilitate a better understanding of the role of geosys-
tem services and the risk s of ignoring geos ystem processes,
while grounding regulations that produce better develop-
ment decisions.14
I. Grounding the Concept of
Geological Services
âEcosystem servicesâ refers to âthe ecological character-
istics, functions, or processes that directly or indirect ly
contribute to human wellbeing: that is, the beneîts that
12. Given the breadth of geosystem structure and processes, as well as the per-
vasive impacts throughout the ecosystem from disruptions in geosystem
processes, it is inevitable that a patchwork discussion of law aîecting geo-
system integrity will miss wide swaths of relevant law. Hence, this Article
does not directly address laws aîecting îoodplains, wetlands, the regulation
of diîerent mining processes, road building, sand dunes and coastal envi-
ronments, wild and scenic rivers, glaciers, or the Endangered Species Act
(ESA) (particularly the critical habitat provisions of the ESA). Similarly,
this Article does not directly discuss the role of many geologic processes,
such as deformation, isostatic adjustment, weathering, tectonic movement,
atmospheric circulation, crystallization, sedimentation, and so on.
13. Nîîîîîîî Rîîîîîîî Cîîîîîî, Eîîîîîîîî Sîîîîîîî: Tîîîîîî Bîîîîî
Eîîîîîîîîîîîî Dîîîîîîî-Mîî
îîî 154 (2004) (âthe value of ecosystem
services becomes apparent only after such services are diminished or lost,
which occurs once the natural processes supporting the production of these
services have been suîciently degradedâ); Gretchen C. Daily, Introduction:
What Are Ecosystem Services?, in Nîîîîîâî Sîîîîîîî: Sîîîîîîî Dîîîîîîîîî
îî Nîîîîîî Eîîîîîîîîî 5 (Gretchen C. Daily ed., Island Press 1997)
(âthe nature and value of Earthâs life-support systems have been illuminated
primarily through their disruption and lossâ).
14. As economist Lisa Wainger points out, â[a]ny progress toward strengthening
the functional or conceptual relations between human actions and mean-
ingful ecological outcomes will improve our ability to make appropriate
trade-oîs between diîerent types of beneîts.â Lisa Wainger & Marisa Maz-
zotta, Realizing the Potential of Ecosystem Services: A Framework for Relating
Ecological Changes to Economic Beneîts, 48 Eîîâî Mîîî. 710 (2011).
people derive f rom funct ioning ec osystem s.â15 Functioning
ecosystems provide beneîts to humans and huma n soci-
eties16; ecosystems provide âbasic life support for human
and animal populations and are the source of spiritual,
aesthetic, and other human experiences that are valued
in many ways by many people.â17 Acknowledgi ng human
reliance on these processes faci litates an understanding of
the environment that accounts for both the traditional way
of valuing natureât hrough the commodity values of the
goods produced by ecosystems, such as timber, food, and
waterâand the value of the other services that ecosystem
processes provide. Given that the services va lue of ecosys-
tems is generally not reîected in the marketplace,18 this
emerging form of ecological economics is adding some-
thing new and insightf ul to the discussion of environmen-
tal valuation and protection.19
Ecosystem services focuses on the human beneîts from
ecosystem structure and processes: it is fundamentally
about the way that humans beneît from functioning eco-
systems. Hence, it should be noted how far the ecosystem
services framework is from theories of nature that support
natureâs inherent value. Ecosystem services does indeed
value the non-use of land and non-interference with eco-
system processes, although this is normally the case when
non-use would serve a comparatively greater value than
use. From the ecosystem services perspective, natural sys-
tems are seldom preserved âfor their own sake,â a phrase
that has some philosophical import. A s J.B. Ruhl states:
âîe bottom line: Ecosystem serv ices are not about just
birds and beesâthey a re about money, and lots of it.â20
Two points should be made at the outset. First, it is
important to recognize that the services approach to
understanding natura l systems succeeds in conveying how
valuable functioning geosystem resources are for humans
and in describing how the continuation of such services
is dependent on functioning systems. In contrast, if we
understand nature as only a collect ion of goods (and not
services), we might înd that soil, for instance, appears as
âlittle more than ground up rock.â21 Yet, when we ask about
15. Robert Costanza et al., Twenty Years of Ecosystem Services: How Far Have
We Come and How Far Do We Still Need to Go?, 28 Eîîîîîîîî Sîîîî. 1, 2
(2017). îe term has also been deîned as the âwide range of conditions and
processes through which natural ecosystems, and the species that are part of
them, help sustain and fulîll human life.â Daily et al., supra note 6, at 1, 2.
16. Daily et al., supra note 6, at 1, 2; Costanza et al., supra note 6, at 253; Mîî-
îîîîîîî Eîîîîîîîî Aîîîîîîîîî, supra note 6, at v.
17. U.S. Eîîîîîîîîîîîî Pîîîîîîîîî Aîîîîî Sîîîîîî Aîîîîîîî Bîîîî,
Vîîîîîî îîî Pîîîîîîîîî îî Eîîîîîîîîî Sîîîîîî îîî Sîîîîîîî 8
(2009).
18. Salzman et al., supra note 7, at 311.
19. Costanza et al., supra note 6, at 253.
20. J.B. Ruhl, Toward a Common Law of Ecosystem Services, 18 Sî. Tîîîîî L.
Rîî. 1, 15 (2005).
21. Gretchen C. Daily et al., Ecosystem Services Supplied by Soil, in Nîîîîîâî
Sîîîîîîî: Sîîîîîîî Dîîîîîîîîî îî Nîîîîîî Eîîîîîîîîî 113, 128
(Gretchen C. Daily ed., Island Press 1997). See also Banwart et al., supra
note 8, at 759-60:
Traditionally, soils have been largely managed with a single use
in mind, primarily for food, feed or îbre production. However,
soils provide other important functions including supporting and
sustaining our terrestrial ecosystems, regulating the atmosphere
through carbon storage, îltering water, recycling waste, preserving
heritage, acting as an aesthetic and cultural resource, whilst main-
Copyright © 2022 Environmental Law InstituteŸ, Washington, DC. Reprinted with permission from ELRŸ, http://www.eli.org, 1-800-433-5120.
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