NAME: Tyler L. Weidlich*
BIO: * J.D., Louis D. Brandeis School of Law at the University of Louisville .
The Mining Law Continuum - Is There A Contemporary Prospect For Reform?

Basic economic principles dictate that resources are most efficiently allocated if "the prices of their use reflect the full costs to society." n186 Under the 1872 Mining Law, access and rights to federal lands and minerals remains virtually cost-free to the industry, as subsidies allow mining companies exceedingly inexpensive access to federal lands and development of its minerals. Consequently, more mining occurs than would otherwise occur under a free market at the expense of other types of land uses and values. n187 The result is an inefficient allocation of resources and, ultimately, a greatly diminished return to the public. While such incentives may compensate mining companies for the often exceedingly expensive exploration and development costs, who will compensate the public for generations of environmental degradation and toxic waste liability?

What remains perplexing is how this policy, clearly absent in all other extractive industries and long removed from modern social and economic context, has endured for over 130 years. [n190] As the Mining Law continues to devolve into regulatory obscurity and stops serving the industry, and even major industry players join the ranks of reform, n191 one cannot help but to be optimistic that much needed, comprehensive reform lies ahead. However, in the interim, fiscal and environmental abuse continues to accrue, and the public inevitably bears this liability.
n190 Shi-Ling Hsu, Fairness versus Efficiency in Environmental Law, 31 ECGLQ 303, 327 (2004). Hsu suggests that the persistence of these subsidies can be attributed to a combination of "political log-rolling," where law makers seek perpetuation in office, and a rhetoric of sympathy and fairness, where the subsidies are presented as programs to insulate "downtrodden peoples . . . from the vicissitudes of markets . . . or other sources of misfortune." Id. This is done to justify the subsidies in the eyes of the public - all in lieu of an efficiency analysis which would expose the "naked wealth transfer from taxpayers to a small group, with little public interest justification."