WHOEVER COINED THE saying “you can’t beat something with nothing” understood why it isn’t enough to highlight where environmental regulation falls short, whether by failing to achieve environmental goals or failing to honor fundamental fairness. We also need to identify solutions that do better.
At PLF, we believe that starts by recognizing that property rights and environmental protection need not be in tension. Property rights are the best—but often overlooked— tool to promote environmental values.
As our wealth grows, so does the value people assign to the environment. Ten thousand years ago, human environmental concern was pretty much limited to our next meal. Today, many of us think carefully about what the temperature will be in more than a century. That’s made possible by the prosperity created by property rights and free markets.
Property owners have a right to conserve environmental resources on their land
PLF defends this vision of property rights as a tool for environmental protection. Last year, we partnered with the Property and Environment Research Center (PERC), the leading free-market environmentalist thinktank, to defend Maine coastal property owners’ right to protect the rockweed growing on their property.
In the last several decades, increased exploitation of this seaweed has raised concerns that it may be unsustainable. Because it plays an important role in the tidal ecosystem, property owners joined together to prohibit or limit rockweed harvesting on their property. (In Maine, unlike many states, the tidal area is private, not public, property.) The Maine Supreme Judicial Court is considering a challenge by a commercial rockweed harvester who claims the right to harvest from private property without the owner’s consent.
In our brief supporting the property owners, we explained that this attempt to erode property rights is not only unconstitutional but a significant threat to the environment. When people own a resource, they have a strong incentive to protect it from overuse. Where resources are unowned and open to anyone, as harvesters urge for rockweed, they can be overused as everyone races to use the resource before someone else does. In the rockweed case, PLF’s property rights argument was echoed by prominent environmental groups that recognized protecting property rights can be essential to protecting environmental resources.
Property owners should be rewarded—not punished— for their role in recovering endangered species
Even where environment regulation is necessary, it is often more effective when it utilizes property rights instead of eroding them. Heavy-handed bureaucratic environmental regulations, by contrast, achieve mixed results, at best. In the 45 years since the Endangered Species Act was enacted, for instance, the law has succeeded at preventing species extinction (99% of species protected by it remain around today). But it has an abysmal record of recovering rare species—only 2% have achieved this goal.
Most endangered species depend on private land for most of their habitat. Thus, the incentives landowners face determine, to a large extent, whether species improve or decline. Improving the rate at which we recover rare species means aligning the incentives of landowners with the interests of rare species.
Unfortunately, a U.S. Fish and Wildlife Service regulation undermines the incentives for private landowners to restore habitat or accommodate species by imposing overly punitive regulations on them regardless of the risk to the species. In 2016, we filed petitions on behalf of the National Federation of Independent Business and the Washington Cattlemen’s Association urging the repeal of this regulation.
We proposed that the Service return to Congress’s original design, according to which the most burdensome restrictions are reserved for the most at-risk species. Reducing regulatory burdens as species recover, we explained, would reward property owners for their role in that recovery, which would encourage them to use their property in ways beneficial to species.
In April, the Department of the Interior proposed to enact this reform. If finalized, the reform would benefit recent efforts by environmental groups to recover species without regulation, litigation, or other sources of conflict, including a voluntary habitat exchange program developed for the monarch butterfly. In other words, this reform will make it easier for conservationists and property owners to recover species.
States should have more flexibility to work with property owners to restore habitat
Federal regulation can also obstruct state efforts to recover species. For instance, it is a federal crime, punishable with imprisonment and a large fine, for a state biologist to move protected rodents from residential areas to state conservation lands. That was the problem faced by PLF’s clients in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service.
Decades of inflexible federal regulation generated conflict over the Utah prairie dog, as the species overtook residential areas, playgrounds, and the local airport. Fed up with this situation, property owners and local governments formed People for the Ethical Treatment of Property Owners (PETPO). They advocate restoring habitat on state conservation lands where state biologists can relocate prairie dogs from residential areas. But federal regulation stood in the way. That’s when PLF came to their aid.
After an early district court win, the state had two years to make PETPO’s vision a reality by developing and implementing a better way to recover the Utah prairie dog. Utah spent hundreds of thousands of dollars and worked with local property owners to improve prairie dog habitat on public conservation lands and successfully relocated prairie dogs. In doing so, Utah disproved the claim by some environmental groups that states would not protect species without the federal government.
The plan benefited both people and prairie dogs. Until the federal regulation was reinstated last year by the Tenth U.S. Circuit Court of Appeals, the state plan had grown the Utah prairie dog population to exceed 80,000, doubling the population from 2010. The conservation success story was so compelling that even after the Tenth Circuit restored the federal regulation, the Service reversed course and allowed the state’s recovery plan to resume.
Innovative recovery efforts like Utah’s are made much more difficult by heavy-handed federal regulations. It took PETPO’s lawsuit striking them down to give the state the flexibility to pursue its plan. When the Service follows through on its proposal to adopt PLF’s reform idea, such success stories will become more common, eliminating this counterproductive regulation as an obstacle to species-recovery efforts.
Even where regulation is well-meaning, bureaucratic red tape can be an obstacle to conservation
Misguided regulation is not the only way the government erects obstacles to achieving environmental goals. Sometimes, even where regulation is well-meaning, the bureaucratic process itself gets in the way.
In 2014, the EPA threatened Andy Johnson with tens of millions of dollars in fines for building a pond on his property. Never mind that the pond restored wetlands, created habitat, and filtered the water that passed through; the bureaucrats could only see red when they decided he should have sought their permission first (though they were mistaken and quickly settled the case).
Our most recent case highlighting how bureaucracy can undermine good conservation is Kansas Natural Resources Coalition v. Department of Interior. The Kansas Natural Resources Coalition has a plan to voluntarily restore habitat for the lesser prairie chicken, a species under consideration for the endangered species list. That plan depends on a federal rule that rewards property owners for such voluntary efforts by allowing them to avoid the listing of the species and the controversial regulations that would entail.
Unfortunately, the agency that issued the rule did not submit it to Congress as required by the Congressional Review Act. Rather than acknowledging its mistake and fixing it, the agency has dug in its heels—even though failing to submit the rule means it cannot be given effect and cannot incentivize conservation.
That’s a shame, because the species could benefit tremendously from the plan, as shown by rancher Ken Klemm. He raises buffalo on his property, helping to restore this native species to the prairie it once roamed free. A strong believer in environmental stewardship, Ken manages his 4,000-acre property to benefit other native species, including restoring habitat for the lesser prairie chicken. If bureaucrats weren’t so stubborn, perhaps more landowners would follow Ken’s example.
In PLF’s effort to move environmental law in the right direction, it’s as important to focus on solutions as it is to raise problems with current regulations. The key to any solution is recognizing the vital role property rights play in encouraging responsible stewardship and enabling environmentally conscious individuals to give effect to their values. At PLF, we will continue to defend property owners’ rights to use their property in environmentally beneficial ways and advocate regulatory reforms that better utilize property rights and markets as tools for environmental innovation.
