Existence value and federal preservation regulation

Some, perhaps many, Americans lose some sense of well-being simply by virtue of the loss of the existence of natural resources in states where they do not live. Unlike physical spillovers or losses in use, "existence values" are harmed when people value the existence of a natural resource intrinsically, so that the destruction of the resource in and of itself harms them. This Article develops a normative defense of federal preservation regulation premised on existence-value concerns, reasoning that such regulation has the potential to maximize aggregate social welfare just as much as regulation of other types of externalities, such as physical spillovers. This Article also responds to the objections of critics who reject existence values as a legitimate basis of federal regulation. The principal objection, that existence values are nonmeasurable, is inconsistent with the findings of contingent value surveys, used precisely to elicit and quantify non-use values in monetary terms, and more importantly, with the comparative measure of the magnitude of the existence-value benefits of natural resources and other conflicting interests that the federal political process itself provides. Critics also suggest that such regulation is in tension with the principles of respect for private property rights and of distributive justice among communities, but these principles do not present concerns that are uniquely applicable when existence values are the motivation for the regulation. Finally, this Article evaluates the implications for regulation premised on existence-value concerns of different approaches to Commerce Clause doctrine and standing requirements for citizen suit enforcement.