Representative Don Young (R-AK) introduced H.R.
701, the Conservation and Reinvestment Act (CARA), in February 1999
to establish an off-budget dedicated trust fund for the acquisition
and protection of land. The bill authorizes placing more than $42
billion of Outer Continental Shelf (OCS) oil royalties into the
trust fund over the next 15 years to enable federal and state
governments and special-interest groups to purchase land for
wildlife protection, urban recreation, and other "conservation"
needs. Because it would create a significant new source of revenue
for the states, it should not be surprising that CARA has gained
significant bipartisan support. However, in return for the funds,
there is much the federal government wants, and its demands could
seriously undermine the freedom of state and local communities to
make their own land use decisions in the future.
The
intention of H.R. 701--to improve land conservation and recreation
in the United States--at first glance is noble, but in reality the
bill represents little more than a pork-filled land grab by federal
and state land management and recreation agencies. All 50 states
and Washington, D.C., would receive millions of dollars annually in
new federal funding, ranging from $7 million for the District of
Columbia to $324 million for California. States would receive money
even though they are enjoying record surpluses and choosing to use
their excess revenue to fund other priorities (such as improving
education, reducing crime, and implementing other programs) more
important than land management and recreation. And CARA's
requirements that states match federal monies provided to them mean
that state and local communities will need to make land acquisition
funding, relative to education, crime prevention, and other
services, more of a priority in the future.
The
long-term cost to the taxpayer of implementing CARA would extend
well beyond the money in its trust fund. Inevitably, acquiring new
land will also require funding both for its maintenance and to
compensate jurisdictions for the loss of economic development; but
such needs are not the focus of this legislation. Consequently, the
bill would likely trigger significant increases in discretionary
spending above and beyond what is dedicated to the trust fund. The
new demands for discretionary spending would build over the 15-year
life of the act and inevitably squeeze out spending for other
discretionary programs.
In
this respect, CARA violates the spirit of the just-passed fiscal
year (FY) 2001 budget resolution. Congress established its fiscal
priorities in this resolution, which include protecting the Social
Security surplus, setting discretionary spending limits, paying
down the debt, and providing tax cuts. Congress did plan for
significant increases in discretionary spending for federal land
management in FY 2001, but the much higher levels of spending
reflected in CARA were not taken into account in the
resolution.
Making CARA's proposed programs off-budget
also violates the spirit of the budget resolution, incorporating
accounting gimmicks to increase spending in FY 2001 beyond what
Members had agreed to spend. Congress would be dedicating money to
CARA that it otherwise would have saved to shore up Social
Security, reduce the debt, or give Americans a tax cut.
CARA
also represents a vast expansion of federal and state roles in
local land management decisions. Unlike the practice in many of the
programs that CARA would replace, H.R. 701 would require the U.S.
Department of the Interior to review and approve many of the plans
the states submit for the use of the funds. The funds would not be
disbursed to a state without the Secretary of the Interior's
approval. And while the bill's supporters argue that states and
local communities will have a variety of ways to spend the money,
the reality is that the federal government could disapprove their
desired uses and force them to spend the money differently. One
needs only to look at the experiences of the federal implementation
of the Clean Air Act and the withholding of federal highway funds
to see how powerful a threat the federal government can become to
state and local land use decisionmaking.
Finally, CARA is inherently unfair because
it empowers government at all levels and special interests to buy
land, placing average Americans at a disadvantage. Rather than
support private property ownership, which the Founding Fathers
understood was critical to maintaining liberty, CARA would fund the
purchase of land by governments and special-interest groups.
Government at any level--federal, state, or local--should own
property only if a compelling natural resource need must be met
that cannot be encouraged by private ownership or enterprise. At
the same time, it is unfair to use tax dollars to give special
interests more power and resources to purchase private property
than average Americans have. Special-interest groups like
environmental and conservation organizations should compete in the
market with private citizens, businesses, or anyone else for
property, and local communities should determine how land in their
jurisdictions should be used.
Congress should go back to the drawing
board and develop an approach that balances conservation of land
resources with the needs of humans and local communities, not the
whims of federal bureaucracies and special-interest groups that
want more power over communities and Americans. It is clear that
with accurate information, proper priorities, and smart choices, a
great deal of good could be accomplished by bringing into the
discussion of land use the principles of federalism. The Framers of
the Constitution understood that people care most about the
environment in which they live, and the level of government closest
to the people is the most effective at implementing policies that
promote land conservation while respecting property rights.
Privatization of the land that is not appropriately under federal
or state jurisdiction would increase the public's involvement in
caring for natural resources.
CARA
is exceedingly misguided in its approach to protecting America's
land resources. It is fiscally irresponsible and will threaten the
sovereignty of the states and local jurisdictions by taking away
their ability to make land use decisions and control their economic
destiny.
CARA'S FUNDING TREK INTO LOCAL LAND
USE
The
Conservation and Reinvestment Act (H.R. 701) now before Congress
would establish a Conservation and Reinvestment Act Fund (CRAF)
into which the Secretary of the Treasury would deposit, beginning
in FY 2001, about $2.8 billion annually from oil and natural gas
royalties as well as other income derived from the exploration and
development of the Outer Continental Shelf. In each year after FY
2001, the Secretary of the Treasury would transfer amounts in the
CRAF as follows:
-
$1 billion would be given to the Secretary
of the Interior for the purpose of making payments to "coastal"
states under Title I, Impact Assistance and Coastal
Conservation;
-
$900 million would go to the Land and
Water Conservation Fund (LWCF), including $450 million to the
federal LWCF and $450 million to state LWCFs;
-
$350 million would fund programs under the
Federal Aid in Wildlife Restoration Act;
-
$125 million would be given to the
Secretary of the Interior to carry out the Urban Park and
Recreation Recovery Act of 1978;
-
$100 million would go to the Secretary of
the Interior to carry out the National Historic Preservation
Act;
-
$200 million would go to the Secretary of
the Interior and the Secretary of Agriculture for federal and
Indian lands restoration;
-
$100 million would go to the Secretary of
the Interior for conservation easements; and
- $50 million would go to the Secretary of
the Interior for recovery of endangered and threatened
species.
CARA
would make $2.4 billion of the $2.8 billion immediately available
for spending with no further appropriations action by Congress
needed in the future. Only $450 million--the federal portion of the
LWCF--could not be spent without obtaining congressional approval
through an appropriations act. Because CARA would
take the funds off-budget, the bill would effectively reduce the
on-budget surplus by $2.8 billion each year over the next 15 years,
for a total of approximately $42 billion.
WHY CARA IS FISCALLY IRRESPONSIBLE
These transfers of funds to federal
bureaucracies demonstrate how CARA would authorize fiscally
irresponsible spending of federal tax dollars. For example:
-
CARA trust fund spending would be used
primarily to expand the levels of current spending. Those who
support the bill make it appear as though CARA would be used to
fund significantly underfunded accounts. Nothing could be further
from the truth. In FY 2000, for example, Congress already provided
$75 million for the Historic Preservation Fund and $55 million for
the Cooperative Endangered Species Conservation Fund. Overall, Congress
appropriated almost a half a billion dollars ($467 million) in FY
2000 to the Departments of the Interior and Agriculture to buy
land.
-
The spending of the trust fund monies
would be made less accountable by taking it off-budget. Section
7 of H.R. 701 would move all spending and revenues of the CRAF
off-budget. As a result, $2.8 billion would be exempt from
congressional budgetary control mechanisms and would receive a
level of protection now afforded only to such vital programs as
Social Security. Taking the Conservation and Reinvestment Act Trust
Fund off-budget would increase to 65 percent, or $1.1 trillion, the
portion of the federal budget that is off-limits to congressional
appropriators today--making the size of the budget even more
deceptive. Between FY 1989 and FY 1997,
outlays for the federal trust funds increased from 33 percent of
total federal spending to 46 percent of federal spending. (See Chart
1.)
WHY CARA THREATENS STATE AND LOCAL
DECISIONMAKING
Sadly, much of the grassroots support for
CARA comes from shortsighted state and local governments that are
focusing only on the inflow of new money the bill would release.
The federal government wants much in return for this money, and its
demands could seriously undermine the freedom of state and local
communities to make local land use decisions.
As
far back as 1818, the U.S. Supreme Court ruled in U.S. v.
Bevans that a state's right to control property within its
borders was an essential part of its sovereignty. Despite this
precedent, CARA contains a number of provisions that would override
both state sovereignty and private property rights. For
example:
- Title I, Impact Assistance and Coastal
Conservation. To receive funds under Title I (Grants to Coastal
States), each state would be required to submit a Coastal State
Conservation and Impact Assistance Plan outlining how the funds
would be used. The plan would have to be approved by the U.S.
Secretary of the Interior before the grant funds could be
disbursed. The bill outlines 11 criteria for how the money can be
spent, making it clear that these are the "only" ways the money
could be spent--rather than giving states flexibility to determine
how to address their own natural resource needs. The criteria
include using the money to implement "bilateral or multilateral
international fishery or marine mammal conservation and management
agreements or both"; "federally approved marine, coastal, or
comprehensive conservation and management plans"; and, most
disturbingly, "projects that promote research, education, training,
and advisory services in fields related to ocean, coastal, and
Great Lakes resources."
The Secretary of the Interior would have
considerable regulatory latitude to determine whether the money was
being spent inappropriately. And it is clear that money would be
given to the states with the expectation that the states would
spend the money to implement any future federal ocean,
coastal, and marine policies that might be developed. The Secretary
would have the authority to ensure that the grants accomplish this.
In addition, grant money apparently could now flow freely to
special-interest groups for educational purposes and undefined
"advisory" services to advance such an agenda.
- Title II, Land and Water Conservation
Fund
Under this title, some very good private property rights
protection language is included for the funds of the federal
portion of the LWCF, but that protection is undermined by the very
fact that so much money would be dedicated annually for acquiring
private property. In addition, although the Secretary of the
Interior is to develop a list of proposed acquisitions to be
approved by Congress, there are a series of objectives the
Secretary may seek in developing such a list. An example of one of
the criteria is to "seek to consolidate Federal landholdings in
States with checkerboard Federal land ownership patterns." How much
latitude will this really give the federal government to acquire a
parcel of private property simply because it lies next to federal
property?
For the state portion of the LWCF, states
must develop a "State Action Agenda" that identifies needs,
priorities, and the criteria it has established. However, states
are required to consult with "local governments and Federal
agencies," which they have not been required to do in the
past. In
addition, states could spend money "to enhance public safety within
a designated park or recreation area." Thus, although parks and
recreation areas would be safer, state and local communities would
have less money overall to dedicate to general community-wide
public safety efforts.
States would also be held to a higher
level of accountability for land acquisition than federal agencies,
except for the protection of private property rights. They would be
required to show, for example, that their agenda is "strategic,
originating in broad-based and long-term needs." For the federal
portion of the LWCF, the Department of the Interior in its
reporting to Congress simply must show how money was spent but not
mention the larger strategic objectives for which the money was
used. At the same time, the private property protections in the
federal LWCF are not extended to the state LWCF.
Finally, Title II expands the ability of
the Secretary of the Interior to disapprove conversion requests
submitted by state and local governments. Current law states that
if a state or local government wishes to convert land that had been
acquired or developed with the assistance of federal funds to some
other non-conservation or non-recreation purpose (such as a new
road), it must seek the approval of the Secretary of the Interior.
Current law provides that the Secretary shall approve such
conversions if he is satisfied that other properties of equivalent
fair market value and usefulness are set aside to replace the land
being converted. CARA would expand the authority of the Secretary
of the Interior by providing that he shall approve a conversion
request only if the state "demonstrates [that] no prudent or
feasible alternative exists."
- Title III, Wildlife Conservation and
Restoration
Title III expands the applicability of the Pittman-Robertson
Act by providing grants for the protection of any wildlife species,
including non-game. Instead of focusing on endangered species or
species that are hunted by sportsmen, this title gives the federal
and state governments and special-interest groups the resources and
power to protect any type of wildlife they so choose. This vastly
expands the reach of this program. The definition of "wildlife" is
broadened beyond game to include nearly everything but plants.
States previously had applied to the U.S.
Fish and Wildlife Service for funding for individual projects or
developed plans for multiple projects. Under H.R. 701, they would
be required to develop "wildlife conservation and restoration
programs" that must be approved by the Secretary of the Interior.
The approved program could be implemented through grants to "other
State, Federal, or local agencies...wildlife conservation
organizations, and outdoor recreation and conservation education
entities," which means that the grant money could flow freely to
local special interests, such as environmental organizations.
Title III outlines how the money can be
used, and many of its provisions will no doubt be defined more
specifically in implementing regulations. For example, the money
can be used to "sustain healthy populations" in ways that include
the "management of habitat." And "conservation education" means
"projects, including public outreach, intended to foster
responsible natural resources stewardship."
-
Title IV, Urban Park and
Recreation
This title sets up a dedicated fund "to assist local
governments in improving their park and recreation systems." The
money is available to communities of more than 250,000 people.
Although local governments must apply for the grant money, the
title specifies that, "at the discretion of the applicant, a grant
may be transferred in whole or part to independent special purpose
local governments, private non-profit agencies, or county or
regional park authorities." Once again, considerable money can flow
to special-interest groups under this title. The federal
government's role is expanded: The Secretary of the Interior, with
the local government, would make sure that the programs under this
title are "coordinated" with Title II LWCF programs so that urban
parks and recreation programs can be used to help meet state and
local qualifications for receipt of the money. Title IV clearly
changes the existing urban park program, which specifically
prohibits using funds to acquire property, and makes it clear that
funds can be used to acquire land for purposes of meeting Title II
and Title IV goals and objectives.
- Title VII, Conservation Easements and
the Endangered and Threatened Species Recovery Act. This title
provides a dedicated funding source for the purchase of permanent
easements to maintain traditional uses and prevent losses due to
development that is inconsistent with these uses. The Secretary of
the Interior can provide funds directly to private "conservation"
entities for the purpose of purchasing the permanent easements at
the state and local level, and these organizations can hold title
to the conservation easement.
The Endangered and Threatened Species
Recovery Program establishes a source of funding for the U.S. Fish
and Wildlife Service and the National Marine Fisheries Service to
implement an incentives-based program that promotes the recovery of
endangered and threatened species and their habitat, and to involve
more non-federal entities. Although this appears to be a positive
change in efforts to protect endangered species, the bill spoils
that objective by outlining a series of very prescriptive
requirements -- principally through Endangered and Threatened
Species Recovery Agreements which must be approved by the Secretary
of the Interior -- that a grant recipient must meet in return for
the funds, thereby making the grant so burdensome that the intent
of helping small landowners appears to be thwarted.
H.R.
701 combines in one massive bill a number of different natural
resources programs and creates dedicated funds to support them. In
return for this consolidation, the federal government establishes a
natural resource management system that includes an expanded role
for both the federal government and special-interest groups in
local land use decisions. In some cases, such as endangered species
recovery, its burdensome requirements would ensure that an
incentives-based program of protecting endangered species would
fail.
WHAT CONGRESS SHOULD DO
As
the Framers of the Constitution understood, people care most about
their immediate environment, and the level of government closest to
the people is the most effective at implementing policies that
promote effective land conservation while respecting property
rights.
The Conservation and Reinvestment Act introduced by Representative
Don Young would enhance the federal government's appetite for--and
ability to own--even more of the nation's land while reducing the
amount of private property individual Americans could own. This
proposal clearly runs counter to America's constitutional
legacy.
Federal agencies spend billions of dollars
today to manage existing federal land holdings, but as findings by
the GAO show, they are not doing a very good job. Rewarding failing
federal bureaucracies with more money and power is like rewarding
an incompetent employee with a bigger salary, more
responsibilities, and more authority. It simply makes no sense.
Before passing legislation that increases
the federal government's control over land use, Congress should
investigate the federal government's current land holdings and land
management activities. Indeed, the Congressional Budget Office
recently recommended a moratorium on new federal land acquisition
by the Departments of the Interior and Agriculture because federal
land management agencies need to improve the stewardship of the
land they already own.
A
new federal land management policy should be developed based on
core American principles of conservation of resources, federalism,
and property rights. To that end, Congress should:
-
Define when a federal taking of private
property is in the national interest
The federal government should manage only public land
possessing unique historic, recreational, or biological qualities.
If the federal government wants to purchase additional land, it
should first decide which of its current holdings can be turned
back to the states or privatized. Privatizing land that should not
be under government control would ease the financial burden that
inappropriate federal holdings inflict on taxpayers and the U.S.
Treasury, and would encourage local investment in conserving land
resources.
-
Devolve to the states ownership of land
that does not meet the criteria for federal ownership or that is
not suitable for privatization
State and local governments generally manage public land more
efficiently and with greater responsiveness to local needs and
interests. However, if money for land use under CARA has to pass
through Washington's land management bureaucracies, it is not at
all clear that this historical trend would continue.
- Facilitate the privatization of land
that should not be under federal or state control
The goal of federal, state, and local governments should be to
improve the stewardship of our natural resources while protecting
private property rights. Congress should assist state and local
governments in transferring lands to individuals, corporations, and
other organizations with strong local stakes in maintaining
economically and environmentally beneficial activities. If a
government buys land, it should be required to divest itself of an
equal amount of land so that there is, at a minimum, no net gain of
government-held land. And the purchase of land by large private
organizations certainly should not be subsidized by U.S. taxpayers
to the disadvantage of average American families and small property
owners.
CONCLUSION
As
Justice Sandra Day O'Connor wrote in New York v. United
States, "some truths are so basic that, like the air around us,
they are easily overlooked." Today, the importance of
balancing the principles of natural resource conservation,
federalism, and private property rights is just such a truth.
Congress must go back to the drawing board
and develop an approach that balances conservation with the needs
of humans and local communities, not the self-interest of federal
bureaucracies and special-interest groups. With accurate
information, proper priorities, and smart choices, the principles
of federalism could generate a great deal of good in managing
America's great land resources. These principles are not inherent
in the CARA proposal, making it fiscally irresponsible and a threat
to state and local sovereignty by taking away the ability for those
closest to the land to make land use decisions and control their
own economic destiny.
Gregg VanHelmond is a
former Research Assistant in, and Angela Antonelli is
formerly Director of, the Thomas A. Roe Institute for Economic
Policy Studies at The Heritage Foundation.