A HEALTHY ENVIRONMENT is critical to human flourishing. Without clean water, air, and soil, people cannot achieve their full potential. But too often, overzealous government bureaucrats and misguided activists have twisted well-meaning environmental laws. The result has been the violation of property rights and other liberties. Two related aspects of modern-day environmental law make this situation worse: it’s politicized, and it’s out of date.
Take the Endangered Species Act (ESA)—the premier federal wildlife protection statute. The ESA establishes a two-tiered framework for the protection of wildlife: “endangered” status for the most imperiled species and “threatened” status for those less in danger of extinction. The law prohibits—on pain of significant civil and criminal penalties—the injuring or harming of any endangered species, but it gives federal agencies the discretion to decide how much to protect threatened species.
Yet, despite significant developments in conservation science, the law’s basic regulatory structure hasn’t changed in four decades. Why? Because the heavy regulatory burdens it imposes have become a very effective tool for government officials and special interest groups to limit productive use of public and private lands.
Whether that actually hurts rather than helps the ESA’s conservation goals doesn’t seem to matter. In fact, one study of ESA litigation between 1990 and 2000 revealed that certain green groups brought three times as many suits to protect threatened species as to protect endangered species. You would expect these organizations to focus their legal efforts first toward saving the more at-risk endangered, not threatened, species. That they haven’t suggests that wildlife protection is not always their top priority. Of course, the government itself is largely to thank for this upside-down prioritization. A Carter-era ESA regulation from the U.S. Fish and Wildlife Service—the chief federal agency in charge of administering the ESA—automatically applies the ESA’s full land-use restrictions to threatened species. That’s contrary to Congress’s intent that such protections be applied more judiciously for less-endangered wildlife.
Such agency misuse of the ESA also can be seen in how the Service takes advantage of the commonsense notion that the fewer individuals within a population, the more likely the population will be considered in danger of extinction. Hence, the agency will seek to carve out of an otherwise healthy population a mini-set of individual animals. The small group is then conveniently defined as its own “species” or “subspecies” separately protected by the ESA.
The coastal California gnatcatcher shows this numbers game at work. Here is a bird that is found by the millions in Baja California. But according to the Service, the gnatcatcher in Southern California is considered a separate “subspecies” under the ESA. For that reason, the agency only looked to the bird’s numbers north of the border when determining to protect it, a decision that by the government’s own estimate will cost nearly $1 billion in economic losses. Never mind that repeated studies have shown no important genetic difference among so-called gnatcatcher subspecies.
Commenting on the gnatcatcher and related controversies, prominent environmentalist academic Holly Doremus acknowledged that the government’s approach to species and subspecies designations “invites the charge that caprice or political pressure, rather than objective, value-neutral standards, drive [the] decisions.”
Largely because of such arbitrary and politicized agency action, Congress has failed to pass any significant update or improvement to the ESA. Naturally, this failure injures landowners and others who have been ensnared in the law’s regulatory net. But it also hurts the very wildlife the law was meant to protect, because the threats endangered animals face today differ from those they faced many years ago. For instance, whatever one’s views on global warming or its human causation, the 45-yearold ESA is not designed to deal with harms related to climate change. As Professor J.B. Ruhl, also a leading environmentalist academic, explained, the statute is very poorly adapted to addressing threats when their “causal mechanisms are indirect (as in greenhouse gas emissions).”
Of course, it’s not just the threats that have changed—so too has the science. But here as well the ESA lags. Preserving many different types of animals and plants can be a sensible policy, but trying to save each and every species isn’t. A better way to conserve wildlife and habitat is to protect ecosystems, not individual species. That approach maximizes the benefits of conservation while minimizing costs. It also avoids government acting at cross-purposes—trying to protect one species while indirectly hurting another. Yet the ESA’s old-fashioned species-by-species approach to conservation is oblivious to ecosystems.
Similarly, the ESA’s focus on conserving species reflects a static way of looking at the environment. The ESA tries to keep everything in place, whatever the cost. The natural world, however, is not static. Ecosystems and the species that comprise them are always changing. Part of that dynamism is extinction itself. In fact, as Professor J.C. Kunich, a prominent ESA commentator, explained, extinction can be ecologically helpful as a “natural method of weeding the garden… to maximize the evolutionary fitness of the gene pool at any point in time.” But the ESA’s politicization hampers efforts to bring the statute, here as elsewhere, into line with current conservation theory.
Other environmental legislation has been politicized, too. The Clean Water Act was originally aimed at maintaining the health of the nation’s navigable waters. It instead has become an onerous federal land-use law. As the late Justice Antonin Scalia sharply put it in Rapanos v. United States, there has been an “immense expansion of federal regulation of land use that has occurred under the Clean Water Act—without any change in the governing statute—during the past five Presidential administrations.” That expansion, in turn, has enabled the federal government, when “deciding whether to grant or deny a permit, [to] exercise the discretion of an enlightened despot.”
The same phenomenon is playing out with the Clean Air Act. Many environmental groups hope to use the statute to dictate the country’s response to climate change. But the Environmental Protection Agency (EPA) itself acknowledges that applying the nearly 50-year-old Act to regulate all greenhouse gas emissions would be an “unprecedented expansion of EPA authority that would have a profound effect on virtually every sector of the economy and touch every household in the land,” yet still be “relatively ineffective at reducing greenhouse gas concentrations.”
Such an “enormous and transformative expansion in EPA’s regulatory authority” should, according to Justice Scalia in Utility Air Regulatory Group v. EPA, be greeted with “a measure of skepticism,” especially when it is to be newly discovered in a statute that’s been around for decades. But these cautionary notes have not prevented big government advocates from demanding economy-altering greenhouse gas regulation by means of a statute never designed for the task of averting catastrophic climate change.
The inability of the Clean Air Act, and environmental law generally, to respond to today’s needs is the product of these statutes’ misuse by government agencies and green activists alike. This abuse of well-intentioned but now out-of-date enactments has come at the expense of home and business owners, as well as environmental protection. But saving the environment is not inconsistent with the preservation of liberty. In fact, the former depends on the latter. What’s needed now is an updated set of environmental laws that recognizes this critical connection. And PLF will be there to continue the strategic litigation necessary to rein in abuses of existing law.
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