Last September the House of Representatives passed a reform of the Endangered Species Act (ESA) to provide more legal protections for property owners, who bear much of the burden for ESA's enforcement. That's the good news. The bill was forwarded to the Senate Fisheries, Wildlife, and Water Subcommittee chaired by Senator Lincoln Chafee (R-RI). Senator Chafee said he would consider it only after a group called the Keystone Center issued a report on how to fix the ESA. That's the bad news.
About ten years ago, Lincoln's father, Senator John Chafee, also commissioned Keystone to prepare a report on the ESA. Its final report offered a mishmash of incentives and regulatory changes, but it made no mention of how the ESA could better protect property rights. Not much has changed since that time. Once again, Keystone has assembled a group of left-leaning environmentalists, industry reps, lawyers and bureaucrats to fashion a "consensus" document. Some of the same people -- Michael Bean of Environmental Defense and Jamie Clark of Defenders of Wildlife, for example -- were contributors to both reports.
However, last week when the Keystone Center released a summary of its forthcoming report, there was one notable difference -- there is no consensus. In the committee's jargon: "Due to a combination of factors and pressures, it was not able to craft one comprehensive consensus-based approach although it did clarify elements that would need to be addressed to reach agreement."
Anyone hoping for an honest discussion of property owner concerns is bound to be disappointed with the report. Use Acrobat Reader to open the Keystone summary and see how many hits you get by running the word "property" through the search function. (Hint: It's either zero or one, and one is about to go extinct.) The report contains no discussion of imposing limits on the amount of time the Fish and Wildlife Service has to approve takings permits, and there is no mention of compensation for people who lose the right to develop their property. The report does helpfully recommend that the Conservation Reserve Program "can serve as an important tool for conserving habitat." However, the report's emphasis continues to call for more incentive programs and ways to make government action more efficient.
This is frustrating because the summary does acknowledge the burden on landowners:
Those with a landowner or regulated interest emphasize the burden -- in terms of cost, delay, and uncertainty -- that they sometimes bear as a result of efforts under the ESA to conserve habitats that they own or rely upon for various uses. All agree, at least in principle, that if new approaches could be identified that would both improve the effectiveness of habitat conservation efforts for species and reduce the burden upon landowners and other regulated interests, those new approaches should be embraced. The working group made a concerted effort to identify and evaluate ideas that could achieve these twin objectives.
Consider the matter of compensating property owners whose land use is restricted for the sake of an endangered species. Currently, the ESA offers landowners a very perverse incentive. Find an endangered species on your property and you will lose the right to use the property should that species come to the attention of the Fish and Wildlife Service. The landowner's incentive is to eliminate the species and keep quiet about it, a practice so commonplace that it has its own pejorative alliteration: "Shoot, shovel, and shut up." This incentive, a creation of Washington policymakers, also hurts endangered species by giving landowners an incentive to reduce their habitat. Landowners will not cultivate habitat if it means more intrusive government restrictions.
Even some environmentalists have come to recognize that if you want to protect species you must protect private property. In a speech at a U.S. Fish and Wildlife Service training seminar in 1994, Michael Bean said the following about the ESA's effect on the endangered red-cockaded woodpecker:
Because... red-cockaded woodpeckers tend to prefer... longleaf pine over other species, landowners thinking about what species to plant after harvest or on former forest land, any of them I think regard the choice of planting long-leaf as a foolish choice because of the greater potential for having woodpecker problems in the future....
Now it's important to recognize that all of these actions that landowners are either taking or threatening to take are not the result of malice toward the red-cockaded woodpecker, not the result of malice toward the environment. Rather, they're fairly rational decisions motivated by a desire to avoid potentially significant economic constraints. In short, they're really nothing more than a predictable response to the familiar perverse incentives that sometimes accompany regulatory programs, not just the endangered species program but others.
What is clear to me after close to 20 years of trying to make ESA work, is that -- from the outside, in deference to you trying to do it from the inside -- is that on private lands at least, we don't have very much to show for our efforts other than a lot of political headaches.
The Keystone group's emphasis on incentive programs is inadequate. Moreover, incentives tend to benefit big corporations more than small landowners. For instance, when the Clinton Administration attempted to balance protection for the spotted owl with the rights of property owners, its came up with a compromise (called "Option 9") that required private landowners to maintain a 40 percent tree cover or propose an alternative plan to conserve owl habitat. That was fine with Weyerhauser. The timber giant agreed to set aside 100,000 acres for the owls in southwest Washington state. But local timber companies weren't so lucky. By endorsing Option 9, Weyerhaeuser shifted the regulatory burden onto its small competitors that lacked land to set aside. The upshot: Local businesses were forced to shut their doors, costing the Pacific Northwest economy an estimated 100,000 jobs.
Will the Senate subcommittee's ESA reform bill include private property protections? The scuttlebutt is that Senator Chafee is worried that any compensation language will hurt his bid for reelection. Rhode Island is one of the most "blue" states in the nation, having voted in 2004 for Kerry over Bush by 31 percentage points. But consider the popular outrage at the Supreme Court's disastrous Kelo decision legitimating government abuse of the power of eminent domain. Even many Democrats object to government trampling on property rights. It's not clear that Chafee's election prospects will be hurt if he becomes a property rights advocate. In fact, by neglecting property rights, Chafee gives his GOP primary challenger Stephen Laffey another issue to use against him.
One thing is certain. If the Senate fails to include private property protection in the reform bill, it will leave the ESA with the same fatal flaw: It puts the interests of landowners in conflict with the survival of species.