Legal Regime of Subsoil

General Provisions

The legal regime of mineral resources in the Russian Federation plays a key role in the system of environmental protection and rational use of natural resources. Mineral resources, including oil, gas, coal, and other minerals, are non-renewable resources, which makes their legal protection and control over their use particularly important. Legislation is aimed at ensuring a balance between economic development and preserving the country's mineral potential for future generations.

Domestic mineral resources include practically all types of minerals, and a significant portion of global reserves of these resources is concentrated on Russian territory. This determines not only the economic but also the strategic role of the country on the international arena. Efficient use of mineral resources contributes to solving socio-economic tasks, including ensuring energy security, developing industry, and enhancing the investment attractiveness of regions.

According to the Constitution of the Russian Federation and the Law "On Subsoil", issues relating to ownership, use, and disposal of subsoil resources are within the joint jurisdiction of federal authorities and subjects of the Russian Federation. The law establishes state ownership over subsoil resources, defines forms of granting subsoil plots for use, and regulates the rights and obligations of users, including compliance with environmental standards and rational resource extraction.

The legal regulation of subsoil use is closely linked to land legislation. Judicial practice demonstrates that having a license for subsoil use does not exempt from complying with the designated purpose of the land plot. For example, mineral extraction on agricultural land plots is possible only after changing the land category, which ensures soil protection and prevents environmental damage.

Thus, the legal regime of mineral resources combines control over their use, environmental protection and regulation of economic activities. The state ensures a balance between the interests of users of mineral resources and the need to preserve them for long-term development, while judicial practice confirms the importance of compliance with legislation concerning both mineral resources and land resources, preventing the illegal exploitation of mineral wealth.

As noted by S.A. Bogolyubov, after land itself, its mineral resources are the next object of the environment subject to legal protection. Unlike most other energy sources (wind, solar, nuclear, tidal, etc.), mineral resources such as oil, coal and gas, once consumed, are not renewable, which is why ensuring rights over them, their rational use, and their protection remain constantly relevant at both international and national levels¹.

The domestic mineral resource base includes practically all types of minerals. Significant portions of the world's reserves of key minerals have been explored in Russia's subsoil². The geopolitical position and role of Russia in the global community, its socio-economic development at present and in the foreseeable future are largely determined by its mineral resource potential and the state strategy for its use³. According to N.I. Khlyudeneva, the annual increase in the development of valuable oil and gas fields enhances the efficiency of solving socio-economic tasks facing our state⁴.

According to the Constitution of the Russian Federation, legislation on mineral resources⁵, as well as issues of ownership, use and disposal of mineral resources⁶ are within the joint jurisdiction of the Russian Federation and the subjects of the Russian Federation. The above provisions of the Constitution of the Russian Federation are clarified in the Law of the Russian Federation "On Mineral Resources", according to which, the legislation of the Russian Federation on mineral resources is based on the Constitution of the Russian Federation and consists of this Law and other federal laws and other normative legal acts adopted in accordance with it, as well as laws and other normative legal acts of the subjects of the Russian Federation (part 1 of article 1 of the Law of the Russian Federation "On Mineral Resources").

Alongside the Russian Federation Law "On Natural Resources," the main federal laws that define the legal regime of water include: The Federal Law "On Environmental Protection" (which defines the legal regime for all components of the natural environment, including natural resources); the Federal Law "On Production Sharing Agreements"⁷; the Federal Law "On the Continental Shelf of the Russian Federation"; the Federal Law "On the Exclusive Economic Zone of the Russian Federation"; the Federal Law "On Precious Metals and Precious Stones"⁸,

As follows from the preamble of the Law of the Russian Federation "On Subsoil", subsoil is part of the Earth's crust located below the soil layer, and in the absence of such a layer - below the surface of the earth and the bottom of water bodies and watercourses, extending to depths accessible for geological study and development. Subsoil are components of the natural environment⁹ and objects of environmental protection from pollution, depletion, degradation, damage, destruction and other negative impact of economic and other activities¹⁰. The state subsoil fund consists of used areas, which are geometrized blocks of subsoil, and unused parts of the subsoil within the territory of the Russian Federation and its continental shelf (part 1 of article 2 of the Law of the Russian Federation "On Subsoil").

Judicial practice

The exercise of the right to use subsoil resources for the extraction of common minerals, which leads to a violation of the legal regime of the land plot, is not allowed until such a plot is reclassified into a category of lands that permit the extraction of minerals.

The prosecutor filed a claim to prohibit the activity of extracting clay on an agricultural land plot.

The court established that the person whose primary type of activity is the production of bricks, tiles and other building products from fired clay is carrying out the extraction of clay on an agricultural land plot. Use of subsoil resources is carried out on the basis of a license with targeted purpose and types of work - exploration of deposits with simultaneous extraction of brick clays.

The court's decision satisfied the prosecutor's claims, prohibiting the individual from carrying out activities related to the extraction of brick clays on agricultural land plots until the land plots are reclassified into a category that allows for the extraction of minerals.

The appellate court overturned the decision and denied satisfaction of the prosecutor's claims.

Leaving in force the decision of the first instance court, the cassation court noted the following.

In accordance with Article 42 of the Land Code of the Russian Federation, owners of land plots and persons who are not owners of land plots are obliged: to use land plots in accordance with their designated purpose using methods that should not cause harm to the environment, including land as a natural object; to prevent pollution, depletion, degradation, damage, destruction of land and soils, and other negative impact on land and soils.

According to paragraph 1 of Article 78 of the Russian Federation Land Code, agricultural lands may be used for agricultural production, creation of protective forest plantings, scientific research, educational and other purposes related to agricultural production, as well as for aquaculture (fish farming) purposes.

Thus, an agricultural land plot can be used for activities related to the extraction of minerals only after transferring this plot from the specified category. Until that moment, its legal regime of use, in accordance with Articles 42 and 78 of the Russian Federation Land Code, is limited by its designated purpose.

At the same time, the mere presence of a company's license for mineral use does not exempt it from the obligation to comply with land legislation and does not grant the right to carry out the extraction of common minerals on agricultural land plots.

Rejecting the respondent's argument that the use of commonly occurring minerals extracted on a land plot owned by the company for its own needs in accordance with Article 19 of the Mineral Resources Law, the court noted that under this article, the use of commonly occurring minerals for one's own needs refers to their usage by landowners, land users, landholders, and lessees for personal, household, and other purposes not related to entrepreneurial activities, whereas the company uses the extracted loamy soils from an agricultural land plot in its production activities.

Source: Overview of judicial practice on issues relating to the application of environmental legislation (approved by the Presidium of the Supreme Court of the Russian Federation on 24.06.2022)