The Public Policy

Unbearable Legislation

Why we may soon hate the polar bear.

By 5.15.08

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The decision announced yesterday by the Secretary of the Interior, to list the polar bear as "threatened," removes all doubt that the Endangered Species Act is broken and in need of urgent repair. It is the environmental movement that must take responsibility for breaking it.

A sensible discussion of the polar bear requires acknowledging a simple fact: that the polar bear is merely a proxy for something else. The environmental pressure groups like the Center for Biological Diversity that have petitioned for the listing acknowledge that their reason for doing so is concern over global warming. The more warming, they argue, the less sea ice; the less sea ice, the fewer polar bears. So their hope was that the Endangered Species Act will give the federal government power to curtail sources of global warming -- such as your car or air conditioning system.

Secretary Dirk Kempthorne attempted to frustrate this desire by erecting regulatory barriers, like a statement from the Director of the US Geological Survey that melting ice in specific areas could not be tied to specific sources of carbon emissions. These barriers have all the legislative strength of tissue paper. It will take but a few moments of a new Administration to blow them away.

After that, the first effects of the now-sacrosanct listing will probably be felt not in Alaska, where America's polar bears range, but in any state thinking of adding a coal-fired power plant to its energy infrastructure. The Act will be used by the new government to intervene -- and by activists to litigate -- against new construction in any controversial permitting process.

Once that precedent is set, the Act would be used to stop uncontroversial, even popular permit applications. Electricity supplies would be constrained. Blackouts and brownouts would proliferate. Were you to buy a plug-in electric car a few years from now, you may well find you have no electricity to power it.

AMERICA'S ENERGY infrastructure will be crippled, and for what? China is building two coal-fired power plants a week and plans to build 97 airports in the next 12 years.

Even if the United States reduces its carbon emissions to zero, global emissions are still likely to increase. If greenhouse gases are truly causing problems for the polar bear, U.S. legislative action will do nothing to protect it.

The polar bear is a pawn in a bigger game, one that pits individuals who want to maximize human welfare against those who regard humanity as blight on the planet. At stake is technological progress itself. And this game will do nothing to protect endangered species.

Here's why: Only since Western society has become wealthy enough have we been able to attach value endangered species and moved to protect them. Prosperity is good not only for us, but for the endangered species as well.

Wolves were reintroduced in the Northwest only after it became apparent that concerned people would donate money to compensate ranchers for the wildlife taken by the animals. The wood duck was saved from extinction by hunters who wanted to keep hunting it. Elephants and rhinos in Africa have thrived when private owners take responsibility for them.

Yet, as I explain in my book, The Really Inconvenient Truths, the fundamental problem with the Endangered Species Act is that it strips value from the species for precisely the same reason that listing the polar bear would damage the nation.

If a landowner discovers an endangered species on his land, the last thing he wants to do is tell the feds, since the subsequent restrictions on the use of his land could ruin him. Thus, landowners routinely resort to killing endangered species, disposing of the evidence, and keeping their lips sealed -- a practice known as "shoot, shovel and shut up."

STEVEN LEVITT, co-author of Freakonomics, has recognized the Endangered Species Act's perverse incentives, which he analyzes as a case study in the law of unintended consequences. (The Convention on International Trade in Endangered Species, the Act's international equivalent, has the same perverse incentives.) And now it threatens to create another unintended consequence: to enact nationwide carbon emissions restrictions through the back door.

The Endangered Species Act is in dire need of reform. It is a completely inappropriate vehicle for climate legislation, and it is failing in its primary intention. A good first step would be to grant people who find endangered species on their land ownership rights over them; people would then have an incentive to protect species they own.

Until we get such reforms, however, the Bush administration should reject this attempt to restrict Americans' energy use. The effects of listing the polar bear will be so wide-reaching that the polar bear might rapidly lose its place in the hearts of the American people.

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About the Author
Iain Murray heads the Center for Economic Freedom at the Competitive Enterprise Institute and is the author of Stealing You Blind: How Government Fatcats Are Getting Rich Off of You.