The incentives are wrong here. If a rare metal
is on my property the value of my land goes up. But if a rare bird
is on my property the value of my property goes down.
--Sam Hamilton, former U.S. Fish and
Wildlife Service administrator for Texas
Secretary of the Interior Bruce Babbitt
announced on May 5, 1998, that he would recommend delisting 33
endangered or threatened species on the endangered species list. He
touted this action as evidence that the Endangered Species Act
(ESA) is working. But his claim subsequently was disputed, most
notably by the director of his own department's Fish and Wildlife
Service. The issue of whether his claims are accurate renewed
Congress's concerns about the ESA and about the ways in which the
Department of the Interior implements it. In October, Congress
considered and then abandoned an attempt to promote ESA reform by
attaching S. 1180, the Endangered
Species Recovery Act of 1997, to the fiscal year 1999 omnibus
appropriations bill.
The
Endangered Species Act passed in 1973 because the public believed
the recovery of endangered or threatened species was important.
Since that time, over 1,100 species have been listed, but only 27
species have been delisted. Unfortunately, none of these 27 species
recovered because of positive actions instituted by the
federal government under the ESA.
In
addition, numerous reports of financial loss and hardship because
of the ways in which the federal government implements the ESA have
come to light, heightening the clamor for reform. Although the
Clinton Administration and other supporters of S. 1180 believed the
bill would solve ESA's problems, its provisions fell far short of
that goal. It did not address the ESA's most serious flaws, such as
its definition of "harm," its failure to require federal agencies
to use sound science in their decision-making process and to
consider the economic consequences of their actions, its use as a
means of federal land-use control, and its perverse incentives that
encourage landowners to prevent endangered species from inhabiting
their property.
To
fix the ESA so that it fulfills the public's desire to protect
endangered species and at the same time honors the constitutional
property rights of Americans, Congress should ensure that (1) the
ESA's definition of "harm" clearly denotes actions that cause death
or physical injury to listed species; (2) landowners are
compensated justly for government takings of their property to
protect an endangered species; (3) the Department of the Interior's
agencies use sound, objective, and unbiased science in determining
listings and delistings of species; and (4) incentives are included
that make landowners partners in the effort to save wildlife and
plant species from extinction; that is, so that landowners
understand the consequences of their actions in making their
decisions.
Does the ESA Help Species to Recover?
In
passing the ESA, Congress demonstrated its intent
to conserve and protect plant and wildlife species in the United
States that are threatened with extinction. Listed species would
receive special protection under the law and would be taken off the
list when they recovered. In the 25 years after the ESA became law,
1,154 animals and plants have been listed as endangered or
threatened; yet only 60 have been targeted
for delisting--and, of those, only 27 have been delisted.
According to the National Wilderness
Institute, the reasons for delisting these species had little to do
with the ESA's efforts to recover them:
-
7 species were delisted because they
are extinct--the Tecupa pupfish, the longjaw cisco, the blue pike,
the Santa Barbara song sparrow, Sampson's pearly mussel, the
Amistad gambusia, and the dusky seaside sparrow;
-
16 species were delisted due to data
errors--the Mexican duck, the Pine Barrens tree frog, the Indian
flap-shelled turtle, the Bahama swallowtail butterfly, the
purple-spined hedgehog cactus, the Tumamoc globeberry, the
spineless hedgehog cactus, the Mckittrick pennyroyal, the cuneate
bidens, the Eastern brown pelican, the Palau fantail, the Palau
dove, the Palau owl, the American alligator, the Rydberg
milk-vetch, and the gray whale;
-
The Arctic peregrine falcon, which was
decimated by the pesticide DDT, was delisted because it recovered
after the 1972 ban on DDT; and
-
The Eastern gray kangaroo, the Red
kangaroo, and the Western gray kangaroo were delisted as a
"response to Australian policies."
As
editor Alan Moghissi of Environmental International
observes in summarizing the National Wilderness Institute
report:
a
disheartening part of the [NWI report] is their conclusive evidence
that the deletion of essentially every species from the endangered
species list was not caused by implementation of the ESA.... [It
provides] a picture in which the USFWS [U.S. Fish and Wildlife
Service] lists a species and either removes it or reduces its
severity of endangerment, solely because afterwards it finds that
it made an error.
Secretary Babbitt announced in May that
another 33 species on the endangered species list were ready for
delisting--which he claimed was a sign of the ESA's success. But
after studying the new list of species, Brian Seasholes of the
Competitive Enterprise Institute notes, "[D]espite such
pronouncements, the facts indicate that the ESA has done little, if
anything, to help most of these...species." (See page 4 for the reasons the
species are to be delisted.)
Three months after Secretary Babbitt
announced plans to remove these 33 species from the endangered
species list, the director of the Department of the Interior's Fish
and Wildlife Service, Jamie Clark, wrote to Representative Richard
Pombo (R-CA), chairman of the Endangered Species Task Force, that
she was "personally embarrassed by this unfortunate error." She noted that
Secretary Babbitt's list of successful recoveries "included species
which we believe to be extinct and those for which we have new
scientific information concerning their taxonomy or abundance."
Evidence that such delistings do not prove
the ESA is working also can be found in an August report from the
National Center for Policy Analysis: Of the 60 species delisted or
proposed for delisting since 1973, 12 species were delisted because
they were extinct, 24 species were delisted because erroneous data
were used to justify their original listing, 9 exist solely on
federal lands and are federally protected without the ESA, 3 that
had been decimated by the pesticide DDT recovered after the DDT ban
in 1972, and 12 are conserved by state agencies or private
organizations.
Further evidence can be found in various
published reports:
-
According to a 1997 Hoover Institution
report, most of ESA's activity involved listing species instead of
instituting methods that would help listed species to recover. For
example, of the $171,811,000 that federal and state agencies spent
to "protect" the 639 endangered species listed in 1991, 50 percent
went to just 7 species, and 90 percent was spent on 54 species. The
remaining species had to fend for themselves.
-
The U.S. General Accounting Office
(GAO) reports that, by 1992, the government had designated critical
habitat for only 16 percent of the listed species and a recovery
plan was in effect for 61 percent.
-
A report in Land Economics notes that,
"Of the more than 3,600 candidates proposed for listing by the Fish
and Wildlife Service in 1993, there was insufficient scientific
information to make a decision on about 3,000."
-
A 1998 report in the Journal of
Economic Perspectives notes that, of the 1,104 species in the
United States listed as threatened or endangered by July 1997,
slightly more than 40 percent have approved recovery plans in
place.
-
According to the Environmental Defense
Fund, fewer than 10 percent of the listed species have exhibited an
improved status, and the status of four times that amount is
declining.
|
How 33 More Species Fell
from ESA Grace
On May 5, 1998, Secretary of the
Interior Bruce Babbitt announced that an additional 33 species on
the Endangered Species list would be considered for removal or
delisted to threatened status. Of the 33 species proposed for
delisting,
|
| 5 of the species are
extinct:*
12 are delisted because of faulty
or incomplete data:
-
Tinian monarch
-
Truckee barberry
-
Hawaiian hawk
-
Chamaesyee skottsbergii
-
Dismal Swamp southeastern shrew
-
Lloyd's hedgehog cactus
-
Tidewater goby
-
Running buffalo clover
-
Virginia northern flying squirrel
-
Virginia round-leaf birch
-
Hoover's wooly-star
-
Missouri bladder-pod
|
1 is not being considered by
the Fish
and Wildlife Service for delisting:
3 recovered as a result of the banning of the pesticide
DDT in 1972:
9 exist solely on federal lands and are federally
protected:
-
Ash Meadows Amargosa pupfish
-
Island night lizard
-
Ash Meadows plants (3 species)
-
Eureka Valley plants (2 species)
-
Robbins' cinquefoil
-
Heliotrope milk-vetch
And 3 could be conserved by other state and federal
wildlife laws:
|
| *Note:
These five extinct species have been removed from the U.S. Fish and
Wildlife Service's list of species on its Web site at: http://fws.gov/rx9exstaff/delstvnt.html.
Source: Brian Seasholes, "Information on Babbitt's
'Proof' the Endangered Species Act Works," Competitive Enterprise
Institute, Washington D.C., 1998.
|
|
The ESA Endangers Property Owners
Jonathan Adler, director of environmental
studies at the Competitive Enterprise Institute in Washington,
D.C., believes the "ESA tramples on private property rights more
than any other statute." In an article in Forest
Landowner, Adler writes:
Under the ESA, individual Americans have
been prevented from building homes, plowing fields, cutting trees,
clearing brush and repairing fences--all on private land. The
federal government has even barred private landowners from clearing
firebreaks to protect their homes from fire hazards.
In a
speech to the Society of Environmental Journalists, Secretary
Babbitt describes how the listing of species prohibits the owners
of species' habitat from using their property, at least for some
time: "[W]hen a species is listed, there is a freeze across all its
habitat for two or three years while we construct a habitat
conservation plan which will later free up the land." The financial
loss caused by this freeze, which prohibits private landowners from
activities like farming, timbering, mining, building homes, or even
enhancing their property, can be devastating. Even the possibility
of such losses creates a perverse incentive for property owners to
keep endangered species off their land.
But
the ESA carries a serious legal threat as well. As a GAO report
notes, the
Fish and Wildlife Service prosecuted 126
alleged violations of the Endangered Species Act on private lands
between 1988 and 1993. Of the 126 cases, 86 were brought
criminally, and 40 were brought as civil prosecutions.
Of
the 71 criminal prosecutions for which results were available,
fines ranging from $25 to $50,000 were levied in 59 instances, and
of $1,000 or more in 21 instances; jail sentences ranging from 10
days to 1,170 days were doled out in 18 instances; and probation
ranging from 182 days to 1,825 days was given in 33
instances.
The
extent to which the Department of Interior will go to implement the
objectives of the ESA can be seen from these reports of cases
around the country. Consider:
-
"Taung Ming-Lin, a Chinese immigrant,
bought land in Kern County, California...to grow Chinese vegetables
for sale to the southern California's Asian Community. Lin claims
to have been told by the county the land was already zoned for
farming and that no permit was needed. When Lin began farming, his
tractor allegedly disturbed the habitat of the endangered Tipton
Kangaroo rat...[and] ran over some of the rats. Lin was charged
with federal civil and criminal violations of the Endangered
Species Act.... The criminal charges carry penalties of up to a
year in jail and $100,000 fine."
-
"In 1973 Margaret Rector bought 15
acres of land on a busy highway west of Austin, Texas. In 1990 the
golden-checkered warbler was listed as endangered, and the United
States Fish and Wildlife Service says her property is suitable
habitat. The land, in the fastest-growing part of the county, is
now unusable. Its assessed value falls from $831,000 in 1991 to
$30,000 in 1992. USFWS says she might be able to get a permit to
develop, but this would require her to finance extensive studies
and to mitigate any impact on the warbler."
-
"[T]he Central Valley of California,
Kern County produces huge crops of vegetables, nuts, fruit, and
cotton with water that is brought southward from Sacramento-San
Joaquin Delta through a series of natural and man-made structures
known as the California Water Project. This multi-billion-dollar
water project is financed by assessments upon all of those who use
the water; in turn, state law allocates the right to receive and
use specified quantities of water to farmers, rangers, cities, and
industrial users. These water rights are recognized as a property
right under California State law. Beginning in 1992, the federal
government started limiting the amounts of water which could be
sent south to Kern County and other parts of California in order to
maintain in-stream flows to protect the habitat of two endangered
fish--the delta smelt and the winter run of Chinook salmon. As much
as two million acre-feet of water--enough to cover two million
acres to a depth of one foot--have been held back annually from
municipal and agricultural use in order to maintain certain levels
in streams and lakes which constitute the habitat of these fish.
Farmers and ranchers have suffered many millions of dollars in lost
crops and, in some instances, have lost their property as it has
become unproductive."
-
"In Southern California an endangered
fly in Riverside County held up the building of a hospital.... It's
a flower-loving desert sand fly, a bit larger than a common
housefly, but it was an endangered fly, and they found eight of
them. The cost to set aside this habitat for the fly: about
$400,000 per fly."
-
"In August 1997, U.S. District Judge
Michael Hogan issued a moratorium on logging on 94 acres of
privately held land near Eugene, Oregon. The two spotted owls
actually make their nest about one mile away from the privately
held parcel of land that is managed by the federal government. But
because the land may be part of the owls' `home range,' the judge
determined that logging should be stopped...without knowing if the
owls in fact even used it."
-
The FWS "threatened to fine a Utah man
$15,000 for farming his land and allegedly posing a risk to the
prairie dog, a protected species.... [T]he USWFS told the man that
he should hire an outside expert to determine if there are prairie
dogs on his land. The expert prepared a report, which indicated
that there were no prairie dogs. The farmer proceeded to work his
land. However, the USFWS has told him that they will fine him
anyway."
The ESA Does More Harm than Good
The
ESA's fundamental flaws interfere with its successful protection of
endangered species. Specifically:
Flaw #1: It does not clarify when a
property owner's actions "harm" a species.
Section IX of the ESA provides the legal
basis for the FWS to determine which species should be protected
and what authority it has to implement a recovery plan to protect
them from "harm." On June 29, 1995, the Supreme Court handed down a
landmark decision in Sweet Home Chapter of Communities for a Great
Oregon v. Babbitt when it ruled that "harm" to a species included
the modification of suitable habitat for a species. The Supreme
Court also upheld the Department of the Interior's regulatory right
to "take" private property in instances in which a landowner makes
"significant habitat modification or degradation."
As
analysts at the Government Institute note:
The
challengers [to this ruling] argued that a "take" of an endangered
species required actual harm to an identified individual animal
(e.g., killing, wounding, injuring, harassing or capturing) while
the Interior Department argued that its regulation should be upheld
because habitat modification could generally affect a species
without actually causing harm to an identified creature.
Because of the Supreme Court ruling, the
ESA empowers the federal government to regulate any land that is
thought to provide "suitable habitat" for an endangered
species--without proof of death or injury to an identifiable animal
that was caused by the landowner. Secretary Babbitt goes even
further, interpreting this ruling to mean that a bird nesting as
far away from private property as 2.7 miles is close enough to
prevent the landowner from modifying the property.
Unfortunately for landowners, the most
recent GAO report on the ESA (released in 1994) shows that about 73
percent of the 712 species on the 1994 ESA list have over 60
percent of their habitat situated on nonfederal lands, and that
about 37 percent of the 712 species are completely dependent on
private land for their habitat. Secretary Babbitt's
interpretation of the Supreme Court's definition of "harm" allows
the federal government great discretion in determining when
regulatory action is required to protect a species.
Consequently, as Environmental Defense
Fund attorney Michael Bean observes, there is "increasing evidence
that at least some private landowners are actively managing their
land so as to avoid potential endangered species problems." He emphasizes
these actions are "not the result of malice toward the
environment," but are "fairly rational decisions, motivated by a
desire to avoid potentially significant economic
constraints." He adds that they were a
predictable response to the familiar perverse incentives that
sometimes accompany regulatory programs. Instead of encouraging
landowners to create or enhance habitat on their property, this
federal empowerment means the ESA creates a perverse incentive for
owners to rid their land of habitat in order to preserve its
economic viability.
Flaw #2: The ESA is used primarily as a
means of "free" land-use control by federal agencies, rather than
as a means of protecting and reviving endangered species.
Under the ESA as it currently stands, the
government is entitled to take control of all or part of a
landowner's property without regard to the financial burden this
places on the landowner if the government feels the property is
needed to protect an endangered species. Consequently, regulators
can set aside large amounts of land at no cost to their agency.
This formula inevitably will lead them to take control of private
property even when its contribution to efforts to save an
endangered species is low and the cost to the landowner is
high.
In
these cases, the unlucky landowner bears the total burden of
species protection. This system sends the wrong message to
landowners. For example:
-
After a farmer in Florida discovered a
bald eagle nesting in one of his trees, federal bureaucrats ordered
him not to operate his tractor within one-half mile of the tree.
The message to farmers: Keep eagles from nesting on your
property.
-
After a rancher in southern Oregon
turned one of his fields into a marshland for wildlife, the state
declared his artificial marsh a "wetland" and prohibited him from
altering it. The message to other farmers and ranchers: Don't
create wetlands or other wildlife habitat.
Such
occurrences would not be so offensive to Americans if the
government compensated them for their loss of use of this property,
but that is not the case. By threatening landowners with the taking
of their land without compensation, the government fosters the
"shoot, shovel, and shut-up" syndrome, which means landowners can
see wildlife and plant life as economic liabilities. The better
stewards of the environment and species that landowners become and
the more wildlife habitat they maintain, the more likely that
today's ESA will punish them and force them to forfeit reasonable
use of their property.
Because an overwhelming percentage of
endangered species live on private land, Section X of the ESA
creates habitat conservation plans (HCPs) that allow the federal
government to address land development efforts that conflict with
its efforts to protect a listed species. These legal agreements
between landowners and the FWS permit the use of land for
activities that the ESA might prohibit otherwise.
HCPs
are voluntary in the sense that landowners who do not choose to
enter into an HCP agreement will not be forced to do so. But many
landowners, when faced with this decision, fear that the federal
government will restrict the use of their land to an even greater
extent if they do not enter into the agreement. Many property
owners feel compelled to agree to an HCP solely to mitigate or
minimize a possible government "taking." HCPs give landowners a
"choice" that is voluntary in name only.
The Case for Just Compensation
The
Framers of the U.S. Constitution recognized that the right to own
and make reasonable use of one's property is fundamental to
freedom. The Fifth Amendment states, "Nor shall private property be
taken for public use without just compensation." The Framers
specified "without just compensation" for two primary reasons: they
had witnessed British troops, appointed judges, and the colonial
government unfairly confiscate private property; and they
understood there would be times in which the government must use
private property for official, legitimate purposes.
The
ESA codifies the protection of endangered species as such an
official, legitimate purpose. The country as a whole, then, should
be expected to pay the costs of implementing its provisions to make
sure the goals of the ESA are achieved. Unfortunately, under the
ESA as it currently exists, individual property owners who happen
to have endangered species on or near their property must bear the
full burden of protecting them.
The
ESA prevents property owners from developing and using the land for
which they pay mortgages and taxes. Under their Fifth Amendment
rights, they should receive compensation for the economic loss they
suffer by this confiscation of property, and it should come at fair
market value. Adopting a provision to ensure just compensation
would reverse the ESA's incentive to rid land of habitat and
species and instead create an incentive to develop or enhance
habitat for endangered species.
How the ESA's Costs Endanger Its
Success
Under the Government Performance and
Results Act (GPRA), federal agencies must issue annual performance
plans on the program activities included in their budgets. These
plans should establish the "performance indicators that are to be
used in measuring or assessing the relevant outputs, service
levels, and outcomes of each program activity." The FWS's
performance plan for the protection of endangered and threatened
species under ESA includes as performance measures (1) "By 2002,
the status of 183 candidate (to be considered for listing as
threatened or endangered) species has been resolved"; and (2) "By
2002, 40% of endangered and threatened species populations are
stabilized or improved."
Although these goals seem reasonable, they
do not take into consideration the biological value of the species
under consideration. There is no explicit recognition of the
relative costs and benefits of stabilizing one species over
another. A species that involves a high economic cost of recovery
and possible low economic benefits receives the same standing as a
species with large economic benefits and low costs. Such arbitrary
performance measures create an incentive for FWS officials to
dedicate their limited resources to those species that require the
least effort or have the most special interest or political
support.
It
is difficult to estimate the cost of implementing the ESA. In
addition to the public resources that go to its efforts to protect
endangered species, there are other costs associated with foregone
opportunities from restrictions on the use of the property. For
example, in 1995, the GAO reported on 57 approved recovery plans.
The total estimated cost to implement 34 of the plans was about
$700 million, and the estimate for the initial three years of
recovery for 23 plans was $350 million. Yet these amounts do not include
the millions of dollars that would be lost from restricted or
altered development projects; in agriculture production, timber
harvesting, mining extraction, and recreation activities; the lost
wages of displaced workers who went unemployed or became
re-employed at lower wages; or the lower consumer surplus resulting
from higher prices and lower capital asset value.
The
government estimates that recovering all currently known endangered
species would cost more than $4.6 billion. According to the National Center
for Policy Analysis, this estimate is misleading because it
includes solely recovery costs; it does not include the $2.26 spent
on consulting with scientists and stakeholders for every $1.00
spent on recovery; or the lost jobs, foregone wages, and social
costs of the recovery effort.
What Congress Should Do
As
it currently stands, the ESA is bad for species and bad for people.
Endangered species receive better protection through voluntary
conservation efforts than through the federal government's
regulatory imposition of limits on the use of private land.
Therefore, Congress should take steps to improve the ESA.
Specifically, it should:
-
Clarify the definition of
"harm." To protect landowners from the "taking" of private
property in the name of protecting endangered species, Congress
must change the definition of what constitutes "harm" to a species
as interpreted by the Supreme Court in the Sweet Home
case. For "harm" to be assessed, the ESA should require the use of
sound, objective, and unbiased scientific evidence that proves the
actions of an individual caused death or physical injury to a
physically identifiable endangered species present on the property.
The cutting down of a few trees, for example, does not necessarily
constitute harm to a species; nor does a landowner necessarily
injure a bird by modifying its potential habitat.
-
Ensure that property owners are
compensated in full for any loss that results from a "taking" to
protect an endangered species. If the country as a whole
decides the protection of endangered species is worthy of federal
attention, it should assume responsibility for the cost of
protecting those species. Under the current ESA, however, the cost
of protecting endangered species is borne only by unlucky private
property owners whose land is home to endangered species.
The ESA should be an on-budget, voluntary,
and non-regulatory incentive-based program that requires agencies
to help landowners to develop mutually compatible conservation
plans for their property. In the words of R. J. Smith of the
Competitive Enterprise Institute, the government
could rent land, lease it, purchase
conservation easements or even purchase land. It could pay tree
farmers or foresters to delay harvest for a certain number of years
in order to allow species utilizing those trees time to produce
more young. It could pay landowners to plant and grow certain types
of habitat necessary for particular species. And it could pay
landowners to produce wildlife by erecting nest boxes or creating
specific types of habitat for wildlife reproduction.
Instead of building bureaucracy or
defending the types of lawsuits that its regulatory overreach
encourages, the federal government should set aside funds to pay
landowners who agree to maintain endangered species habitat on
their property or who agree not to use their property in a manner
that endangers and threatens listed species. This type of action
would ensure that endangered species are recovered and the property
rights and prosperity of landowners are protected.
A Model of Success
The success of the Wetlands Reserve program, Ducks
Unlimited, Trout Unlimited, and the North American Waterfowl
Management Plan (NAWMP) demonstrates that this approach works well.
These programs take advantage of the economic and social value
people place on the presence of wetlands. Under the NAWMP, the
federal government offers grants and matching funds to local and
regional groups to purchase conservation easements on privately
owned wetlands, restore areas that once were wetlands but have been
drained, and enhance existing wetlands.
This type of system does not discourage
landowners from having wetlands on their property; it encourages
them to maintain them. Jonathan Adler notes that:
not
only do nonregulatory programs produce real results where
regulatory programs fail, they are also more cost effective. Under
the Wetland Reserve Program and the North American Waterfowl
Management Program, the federal government spends less than $1,000
per acre restoring wetlands. Yet [Clean Water Act] Section 404
mitigation costs the federal government nearly $4,000 per
acre.
A program that is voluntary and
non-regulatory could promote the same type of success story for
endangered species.
- Demand that
Department of the Interior agencies employ sound, objective, and
unbiased science and examine the economic consequences of their
actions in the decision-making process. Although
recovering every endangered species to levels they may have had at
one point in history is desirable, it is also impossible. Further,
not every single member of an endangered species can be saved. But
the ESA protects rare species as well as rare subspecies: Section
III of the act states, "The term `species' includes any sub-species
of fish or wildlife or plants, and any distinct population segment
of any species of vertebrate fish or wildlife which interbreeds
when mature."
As authors Dixy Lee Ray and Lou Guzzo
observe, this broad definition makes it possible for
government agencies and their employees to
identify any creature as a species --or subspecies--or geographical
population--or whatever best suits their purposes for listing it as
"endangered" or "threatened." And this can have and has had
devastating consequences.
Instead of using limited financial
resources to protect the most valuable and biologically diverse
species, the federal government wastes funds to protect species
that have the support of special interest groups or political
favor. Ray and Guzzo add
In
1990 there were 14 mammals species and 36 mammal subspecies or
populations listed as endangered or threatened. By 1991 the number
of species had increased to 36, but the subspecies and population
listings had grown to 199.
Congress and the federal government should
prioritize the risks that face American species and focus the
limited resources on the greatest risks of extinction first.
According to the ESA, the Department of
the Interior's decisions on listings and delistings supposedly are
made on the "best available scientific and commercial data." But more often,
these decisions are made on questionable scientific data that have
had no independent peer review. Reform of the ESA should include
the requirement that all listings, delistings, and evaluations of
conservation plans be based on the most sound, objective, and
peer-reviewed scientific information available. And those
scientific findings should be open to public scrutiny. A framework
should separate scientific fact-finding aspects from
decision-making aspects; otherwise, the science on which federal
policy makers rely to make their decisions will continue to be
driven by the balance of power among special interests or political
motives. Furthermore, a rational examination of the costs and
benefits of protecting one particular endangered species versus
another, and of instituting various recovery plans, must be
performed to ensure that Americans get the most significant
environmental benefit from the resources invested.
The Role of the States
States also should be considered partners in the listing
and implementation of recovery plans because they may have relevant
information on which to base decisions. States can prioritize the
risks to endangered species, target resources more precisely to
meet their needs, and be more responsive to landowners than distant
federal regulators can. And states can adopt legislation to ensure
the rights of property owners under the Fifth Amendment. The
American Legislative Exchange Council, for example, developed model
legislation entitled "The Private Property Protection Act," which
targets
the
establishment of reasonable standards for takings and a method of
relief for landowners whose rights have been taken by excess
regulation. Key components of the bill include: a definition of a
regulatory taking, governmental compensations for property rights
infringement, inverse condemnation procedures, regulatory rollback
procedures, legal challenges and tax adjustments.
- Create
incentives that make landowners partners in the government's effort
to save America's species from extinction. The easiest way
to encourage citizens to play a part in the protection of
endangered species is to give them an incentive to do so.
Compensating them and rewarding them for acting as stewards of
endangered species is the first and best incentive.
Conclusion
The
Endangered Species Act should encourage--not discourage--the
provision of habitat to endangered species. As Richard L. Stroup of
the Political Economy Research Center observes,
[I]t is ironic that the Constitution
explicitly forbids the U.S. Army, even in the name of national
defense, from requiring that a citizen quarter a soldier (that is,
provide food and shelter for a soldier). Yet the government can
require the same citizens to quarter a grizzly bear, a spotted owl,
or any other member of a threatened or endangered species, at the
landowners expense.
Congress should reform the ESA so that it
provides just compensation to landowners in exchange for becoming
stewards of habitat for American species. It should seek reforms
that make the ESA less strong-arm and more helping-hand. This
reorientation alone would help to make landowners more inclined
toward welcoming rare wildlife to their property and less likely to
feel compelled to get rid of them. Until Congress weighs in on the
constitutional first principles of property rights and just
compensation, both endangered species and landowners will continue
to suffer.
-- Alexander F. Annett is a Research
Assistant in The Thomas A. Roe Institute for Economic Policy
Studies at The Heritage Foundation.
Endnotes