The managing director of ICREI, the International Center for Research on Environmental Issues, Max Falque is based in Aix-en-Provence, France. He tells the story of how he changed from a French bureaucrat to a proponent of environmental protection using private property and markets. From his essay, “Why Did I Become a Free-Market Environmentalist?” in I Chose Liberty, edited by Walter Block.
Based on my family background, I should still worship central government and “service public,” like the great majority of French. My family shared two traditions: on my father’s side, conservative provincial and provençal bourgeoisie engaged in farming a family estate since the 16th century, and on my mother’s side, the value of the liberal, intellectual, Catholic beliefs. But everybody agreed about the sanctity of bureaucracy. Studying law at the Montpellier University in the 50s could not introduce me to classic liberal thinking, since the clear distinction between civil and administrative law was (and still is) a basic fact. In economics classes, references to Keynes and Samuelson left no room for unknown Austrian economics. The Communist party used to get nearly 30 percent at the general elections, and most “intellectuals” were at least fellow travelers or useful idiots, if not true believers.
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The concept of free market environmentalism (FME) came as a revelation to me when meeting R.J. Smith at a Lincoln Institute conference at Harvard in July 1983. R.J., in a plenary session, briefly explained that land could be best managed by property rights and market instruments. Ann Louise Strong, as chair of the panel, dryly answered that this was outdated and inappropriate thinking. I felt sorry for R.J. and I invited him to discuss the issue at a neighboring pub. It was quite a fascinating evening and, back in France, R.J. sent me his recently published article, “Privatizing the Environment” (Policy Review, 1982). I was then introduced progressively to the FME literature and scholars. Continue reading “How I Became a Free-Market Environmentalist in France”
Anti-poaching action leads to multiple deaths of rangers and poachers alike.
The International Ranger Federation reports that 269 rangers were killed across Africa between 2012 and 2018, the majority of them by poachers….
[R]esearch on organized crime estimates that between 150 and 200 poachers were killed in the Kruger National Park alone [between 2010 and 2015]. In neighboring Botswana, anti-poaching action has reportedly resulted in dozens of deaths, and the country’s controversial “shoot to kill” policy—which gives rangers powers to shoot poachers dead on sight—has drawn allegations of abuse.
South Africa’s most recent rhino-poaching crisis came out of the blue. In 2007, the country lost just 13 rhinos to poaching; the next year, that number jumped to 83, kicking off a nightmarish escalation. Losses peaked at 1,215 in 2014, and deaths are still high: 2018, with 769 rhinos killed, was the first year that losses had dipped under 1,000 since 2013. South Africa is home to 93 percent of Africa’s estimated 20,000 white rhinos and 39 percent of the remaining 5,000 critically endangered black rhinos, making South Africa’s rhino crisis a global rhino crisis.
Congress originally passed the law as an emergency measure to prevent the looting of antiquities on Indian lands.
By H. Sterling Burnett
The 1906 Antiquities Act was one of the most ill-considered laws ever written, giving presidents dictatorial power to declare large swaths of the public’s land off limits to a variety of uses normally allowed on federal lands. Under President Barack Obama, this power turned into a monument acquisition spree.
The Antiquities Act grants the president discretionary power “to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest … to be national monuments.” Congress originally passed the law as an emergency measure to prevent the looting of antiquities on Indian lands. It was intended, as the debate surrounding it shows, only to be used when public lands or artifacts faced immediate threats of destruction and the normal pace of congressional action might take too long to prevent harm.
The law limits the scope of a monument to “the smallest area compatible with the proper care and management of the objects to be protected.” Those limits have proved to be a sad joke, providing virtually no limit on the president’s power at all since the president can decide what the smallest area necessary for protection is.
The Antiquities Act also authorized the federal government to control if not outright take state and privately owned lands as necessary to protect the integrity of a monument.
If there was ever a justification for the Antiquities Act, that time is long gone. The process of creating a national monument bypasses legislative consent and routinely contradicts the desires of the people in the states where the monuments are designated, those who suffer most directly from the new limits placed economic and recreational activities on the land. Hundreds of millions of acres have been placed off limits as monuments, with each designation providing a photo op for the president. He smiles for the camera, while somewhere someone’s access is taken, someone’s hunting and fishing grounds are gone, someone’s land has been grabbed, someone’s life’s work is wiped out, the productive use of the land is limited, and the American dream of ranchers, farmers, miners, and oil and gas workers are dashed.
Only four Presidents—Richard Nixon, Gerald Ford, Ronald Reagan, and George H.W. Bush—have refrained from declaring national monuments since the Antiquities Act became law. In this post I will discuss President Obama’s monument spree, and will discuss in subsequent posts Presidents Trump’s reaction and a way forward.
In his second term in office, President Obama designated more monuments (26) than any president before him breaking the previous record (18) held by President Theodore Roosevelt, who signed the Antiquities Act into law.
In the months and even days before leaving office, Obama declared two of the largest, most controversial monument declarations of of any presidency. Over the objections of his fellow Democrats in Hawaii, he quadrupled the size of the Papahanaumokuakea Marine National Monument (PMNM), first created by President George W. Bush in 2006.
With its August 25, 2016, expansion, this monument became the largest protected reserve on Earth, comprising about 582,578 square miles, nearly double the size of Texas.
Obama expanded the monument despite the fact there was no pressing threat to the area and over the objections of many prominent Hawaiians and a federal regional fishing council. Obama’s action in Hawaii came despite pleas from former Hawaii Gov. George Ariyoshi (D), former U.S. Sen. Daniel Akaka (D), and former Gov. Ben Cayetano (D), who sent a letter to Obama requesting he not expand the monument. Further, the Western Pacific Regional Fishery Management Council (WPRFMC), federally designated to manage waters around the U.S. Pacific islands, said the expansion was not needed and Obama’s decision to expand the monument was not about protecting the environment but rather it “serves a political legacy.”
“Closing 60 percent of Hawaii’s waters to commercial fishing, when science is telling us that it will not lead to more productive local fisheries, makes no sense,” Edwin Ebisui Jr., chairman of WPRFMC, said in a statement.
Then, on December 28, 2016, literally days before turning over the White House to President Donald Trump, Obama designated two additionl national monuments, preventing a variety of uses on 1.65 million acres of land in Nevada and Utah. He created the 1.35 million acre Bears Ears National Monument (BENM) in Utah and the 300,000 acre Gold Butte National Monument in Nevada. (By the way, 1.65 million acres is bigger than Long Island.)
Few people were surprised by Obama’s action in the Bears Ears’ case because he had been pushing for it for more than a year. Indeed, Utah’s state government, and its entire congressional delegation, had fought a national monument declaration for the area for years – showing there was no “emergency” justifying the Obama action to create the monument. Nothing had changed on the ground.
In declaring the monument, Obama ignored the pleas of the county governments which border the monument or with which it would exist. Utah’s Washington County Commission unanimously passed a resolution opposing the creation of the Bears Ears monument in San Juan County, Utah. The action came two weeks after commissioners in San Juan County passed a resolution on October 4 requesting Obama not put Bears Ears within the county’s borders. At 1.9 million acres, the moument would take up 37 percent of San Juan County’s land.
According to a report commissioned by the San Juan County Commissioners, establishing Bears Ears would preempt “18 established Federal, State and local land use planning efforts” and take “151,000 acres of Utah School and Institutional Trust Lands, vast areas of private inholdings, including 43 grazing allotments, no less than 661 appropriated water right diversion points, the sole operating uranium mill in the United States, multiple oil and gas production areas, and approximately 18,000 acres of patented property.”
As for Obama’s monument declaration in Nevada, its Republicans, including then Sen. Dean Heller, Rep. Cresent Hardy, and Rep. Mark Amodei all opposed the designation of the Gold Butte area as a national monument in Nevada.
“I am terribly disappointed with today’s news,” Heller said in a statement. “For years, I have urged for all new land designations, especially ones in Nevada, to be considered in an open and public congressional process [including] input from local parties, guarantee[ing] local needs are addressed. In the future, I will continue to fight for an open process utilizing congressional support to designate new national monuments.”
Fortunately, the next president had a better idea, which I will explain in a subsequent post.
Don’t let them tell you the Endangered Species Act has been a success.
Environmentalists’ knee-jerk reactions to the Trump administration’s regulatory changes under the 1973 Endangered Species Act (ESA) were as predictable as they were misguided. Environmentalists claimed the changes violate the law and gut protections—leaving vulnerable species otherwise on the road to recovery at risk of annihilation. Sadly, the mainstream media, which seems to treat as revealed truth every study, press release, pronouncement, and tweet from environmentalists, especially if it’s critical of the Trump administration, parroted these claims.
History of Failure
Based on environmentalists’ and the press’s reactions, you would think the ESA had a glowing track record of success in bringing species back from the brink of extinction, but nothing could be further from the truth. Actually, the ESA has been a costly fiasco.
Since 1973, more than 2,470 species of plants and animals have been listed as “endangered” or “threatened” under the ESA. Federal, state, and local governments, as well as private individuals, have spent billions to help those species recover. People have been forbidden to build homes or businesses on their own land, told they must stop farming or logging, and road and hospital construction has been halted or delayed. Yet for all this effort, just 85 species have been removed from the Endangered Species List, representing only 3.4 percent of all species ever listed.
And a majority of the species removed from the list were taken off for reasons other than successful protection. Eighteen species had been improperly placed on it in the first place, due to data errors (18 species); 22 were foreign species given no protection by the ESA; 13 were recovered due to other laws or regulations, such as the banning of DDT; and, worst of all, 10 species were delisted because they became extinct while on the list, or were already extinct at the time they were listed.
In more than 46 years of existence, at best, the ESA is responsible for helping 16 species to recover—though it’s questionable whether the recovery of those species, which are mostly plants, is actually due to the ESA, since they existed almost entirely on federal land and were thus already protected. If the ESA were a school, it would have the worst graduation rate in history!
Project, Properties, Species at Risk
Although the ESA has almost entirely failed to recover species, it has been spectacularly successful in violating people’s property rights, in the process depriving many of them of their hopes and dreams. Simultaneously, ESA has harmed the very species it was intended to save.
For instance, in 2012 construction on a $15.1 million underpass in Texas was brought to a screeching halt when workers came across a single “bracken bat cave mesh weaver,” a blind, translucent spider that was thought to be extinct. There was just one big problem: The spider was so similar to another blind spider in the region that in order to confirm its identity, researchers killed it. In doing so, they may have killed the last remaining bracken bat cave mesh weaver in existence. Since that time, no other member of the species has been identified, and construction on the project was delayed for three years.
After the red-cockaded woodpecker was listed as endangered, many landowners in the Southeast began clearcutting their long-leaf pine trees, which is key habitat for the woodpecker. Why? They feared losing their property rights after watching their neighbors, in whose trees woodpeckers had established homes, lose their right to manage their property. Property values declined wherever woodpeckers appeared, and logging was undertaken at a feverish pace to avoid the woodpecker taking up residence on people’s land.
Since 2014, landowners in Thurston County, Washington, have had their ability to develop their property severely restricted due to the discovery of three subspecies of the Mazama pocket gopher, which has been twice listed as threatened under the ESA. To avoid being sued by the federal government, Thurston County now requires landowners who want to build on their property to determine whether their soils are suitable gopher habitat.
In one case, because inspectors discovered a single mound of dirt indicating the possible presence of gophers on an eight-acre parcel of land during a site review, Steve and Deborah McLain have been unable to get a permit to build a home on their property, despite offering to cede the acre surrounding the mound as protected gopher habitat. In another instance, a home developer had to fence off 64 percent of a one-acre lot to get a permit to build a home.
Reforms Aim to Reduce Costs, Improve Recovery
The regulatory reforms by the Interior Department (DOI) are aimed at reducing costs and focusing scarce agency resources to recover species that are most at risk of disappearing in the near term. Indeed, DOI is reversing a decades-old policy that mandated that threatened species (that is, species not as close to extinction as endangered species) receive the same protections as endangered species. The act itself had said that actions impacting threatened species should be judged on a case-by-case basis. However, previous administrations applied the same heavy-handed prohibitions intended for endangered species to threatened species.
From a regulatory perspective, this policy eliminated the significant difference between the two categories written into the law. In the process, it unjustly restricted property use even when the species purportedly being protected by the restrictions wasn’t t endangered. The restrictions meant resources were diverted from protecting species at near-term risk of extirpation to issuing regulations and enforcing restrictions for species not currently at risk of decline or extinction. It’s long past time the government corrected this ineffective, unfair policy.
A second reform revises how critical habitat for species recovery is designated. This reinstates a requirement that officials review areas currently occupied by an endangered species before reviewing uninhabited areas that might harbor endangered species in the future. The Obama administration had changed the habitat rule to impose equally stringent restrictions on potential habitats as well as occupied habitats. Specifically, the new rule states, “The Secretary will designate as critical habitat . . . specific areas outside the geographical area occupied by the species only upon a determination that such areas are essential for the conservation of the species … [and] there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species” [emphasis added]. The second provision clarifies, in accordance with a Supreme Court ruling, any area declared critical habitat actually be viable habitat.
Frog Case Shows Reform Is Needed
The case of the dusky gopher frog highlights the need for this reform. In 2001, the U.S. Fish and Wildlife Service (FWS) listed the dusky gopher frog as endangered. At the time, only 100 adult frogs were known to exist in the wild, all in Mississippi. In 2011, FWS designated 6,477 acres stretching across Louisiana and Mississippi as “critical habitat” for the frog, empowering it to limit the uses of the land to help the species recover.
While this might on the surface seem within the intended purpose of ESA, there is a unique hitch in this case: The frog does not exist on the 1,544 acres of private land in Louisiana, has not existed there since 1965, and in its current condition, the land is not suitable for the frog’s habitation or survival. In other words, there ain’t no frogs there, and they can’t live there unless the landowners make costly changes to the land to make it suitable for the frogs.
FWS tried to extort the landowners into making a portion of their property suitable frog habitat, saying it would allow the property owners to develop 40 percent of their property if they undertook changes to alter the remaining 60 percent to make it suitable habitat for the frog. FWS estimated the required changes would cost the landowners $20.4 million. FWS said it would also allow owners to leave property in its current state, but by doing so, FWS would not allow any development, costing landowners $33.9 million in lost value. The mafia could provide no better an example of strong arm tactics!
The lands owners challenged FWS’ Louisiana critical habitat designation, and 18 states and a number of business groups—including the American Farm Bureau Federation, National Alliance of Forest Owners, National Mining Association, National Association of Home Builders, and U.S. Chamber of Commerce—backed their challenge.
Inexplicably, by a vote of eight to six, the U.S. Court of Appeals for the Fifth Circuit allowed FWS’ critical habitat designation to stand. As Fifth Circuit Judge Priscilla Owen noted in her dissenting opinion, FWS’ action was “unprecedented and sweeping” … “[It] re-writes the Endangered Species Act.”
Let’s be clear: The dusky frog is not in commerce, much less interstate commerce, so the federal government should not have jurisdiction over the frog or the property/habitat in question in the first place. Perhaps more importantly to the general public is the fact that if FWS’ habitat designation is allowed to stand, no person’s property is safe from being declared critical habitat for some endangered species; the government could force each and every one of us to expend resources to make our properties suitable for one “endangered” species or another.
Sound farfetched? Consider this: There are currently more than 1,650 species listed as endangered in the United States—with listings in all 50 states and the District of Columbia—but less than half, only 742 of them, have had critical habitat designated for their recovery. In addition, FWS has hundreds of ESA listing decisions pending, each of which, under the terms of the law, would require the designation of critical habitat. And for those species without critical habitat, before the Trump administration’s reforms, FWS had threatened that future designations “will likely increasingly use the authority to designate specific areas outside the geographical area occupied by the species at the time of listing.”
The Trump administration’s regulatory changes should prevent similar efforts, which violate the Constitution’s Fifth Amendment protections against uncompensated takings. If government wants to take a person’s land to expand a viable habitat, the landowner should be justly compensated. The same principle applies when government confiscates someone’s land for a military base, a road, or a school.
DOI’s rule changes don’t gut the ESA and won’t lead to the demise of any endangered (or threatened) species. However, the changes will help ESA operate more efficiently and lawfully.
Further Reforms to Make ESA Work
Although the Trump administration’s actions are legal and eminently reasonable, they still don’t get at the root of the problem of the ESA. The true cost of the ESA should be measured in houses, homeless shelters, and hospitals not built or significantly delayed; medical and technological discoveries not advanced; funds not available for education, crime control, health, or environmental matters; and in “protected” species lost or still on the list and declining.
ESA fails to protect species because it creates perverse incentives to destroy species and their habitat. More than 75 percent of the listed species depend on private land for all or part of their habitat. Yet if people provide suitable habitat for an endangered species, their land becomes subject to severe regulation and possible confiscation.
Property owners are faced with three undesirable options: kill an endangered species member—“shoot, shovel, and shut up”—destroy habitat before a species moves in, or lose the use and value of their land. Clinging to this approach condemns the very species ESA was passed to protect.
For 46 years the ESA has made property owners adversaries of endangered species. At a minimum, we must make property owners allies in species conservation. The fairest and most effective way to foster species recovery would be to reward people for managing their property in ways that attract endangered species. For instance, paying landowners when their property is restricted to protect species would be consistent with the Constitution’s requirement landowners be paid just compensation when their property is taken for public purposes, and it would keep them from being forced to choose between their own welfare and that of the endangered species.
“I divide environmental topics into two sometimes overlapping groups, ‘romance’ and ‘sludge.’ The romance sector includes parks, forests, wildlands, wilderness, wildlife, and scenic vistas.”
By John Baden
I divide environmental topics into two sometimes overlapping groups, “romance” and “sludge.” The romance sector includes parks, forests, wildlands, wilderness, wildlife, and scenic vistas. These treasures grace calendars and coffee table books. Most educated and comfortable adults, even committed urbanites, are attracted to and want to protect this sector.
The second division is sludge. This term refers to nasty stuff that is often the necessary byproduct of legitimate productive activities such as food processing, mining, and manufacturing. These are spillovers from legitimate and useful activities.Economists call this category negative externalities. They ask: How might we efficiently reduce them—or even better, convert them into useful products?
That’s exactly what environmental entrepreneurs did when they converted the wood waste and scrap from lumber mills into valuable wood panels. Those panels replaced plywood—which had replaced boards formerly cut from old growth trees. Lesson here? In a market process economy, superior substitutes naturally evolve.
We can’t live without some sludge; it’s inherent in living and using products from the earth. While recognizing this, I choose to work in the romance arena. Had I elected to focus on sludge, I’d live in Boston and study its harbor. Instead, I live on a ranch between Bozeman and Yellowstone Park and study my surrounding habitat. Thus, I work in the tradition of America’s first conservationists.
America’s old-line conservation organizations were primarily concerned with the romance sector of their environment, largely with protecting wildlife. A common target was market hunters, people who overexploited the wildlife commons. The Migratory Bird Treaty Act (MBTA) of 1918, one of the oldest wildlife protection laws, was among the National Audubon Society’s first major victories.
The 1857 book Wild Northern Scenes; Sporting Adventures with the Rifle and the Rod is an example of the connection between outdoor recreation and preservation of environmental romance. In this book, S.H. Hammond writes: “We are here alone with nature, surrounded by old primeval things. Tall forest trees, mountain and valley are on the right hand and on the left. Before us, stretching away for miles, is a beautiful lake, its waters calm and placid, giving back the bright heavens, the old woods, the fleecy clouds that drift across the sky, from away down in its quiet depths.”
My columns and posts build on a lifelong interest in conservation. It began by creating the Concord Conservation Club while in the fifth grade of the small, high-quality and quite rural Concord School in Miami County, Ohio.
Our club focused on wildlife, both fish and game. For example, I recall Field and Stream articles on the importance of fence rows in providing habitat. In those years family farms fields were small by today’s standards; forty acres was a large one. Most farms were fenced to keep farm animals, mainly beef and dairy cows and flocks of sheep, in for grazing. Various types of grasses and small bushes grew on both sides of each fence. I learned that fence rows provided good habitat for small animals nesting, hiding from predators, and gaining protection from weather. I maintained my interest through high school and college and expressed it through hunting and fishing.
My columns with the Goodman Institute will be written while enjoying life in the Greater Yellowstone Ecosystem. My goal is to explain how responsible liberty, sustainable ecology, and modest prosperity can complement one another while fostering wholesome communities. Communities flourish within this trinity. Eliminate any one and life becomes problematic, unpleasant over the long term—even unsafe.
Of the three elements of this trinity, modest prosperity is often underrated. Especially by Greens with a “woke” philosophy. Socialists and other authoritarians fail to understand the linkages among liberty, prosperity, and sustainable ecological systems.
They see economics as a subset of engineering rather than of evolutionary biology. Hence, they believe that prosperity can be designed and administered by the governmental bureaucracies via regulations and directives. This command approach never has and never will succeed. Why?
Bureaucratic knowledge is incomplete, and errors are common. Further, incentives often yield perverse outcomes. For example, federal programs to subsidize draining prairie potholes, America’s “duck factories,” destroy habitat for migratory water fowl and terrestrial wildlife dependent on pools of water. Reclamation irrigation dams destroy salmon runs. Here as elsewhere, political forces trump ecology and economics.
Prosperity, as contrasted to windfall gains from winning a lottery or finding gold, evolves as individuals discover ways to move resources to higher value. I will be discussing that in the future with the example I know best, our ranch.
John A. Baden is founder and chairman of the Foundation for Research on Economics and the Environment (FREE), located in Bozeman, Montana.
No longer treating threatened species as if they were endangered.
The Endangered Species Act applies its most significant protections to species classified as “endangered,” including very stringent prohibitions against activities that would harm species or their habitats. This includes severe restrictions on how private property owners can use their land.
But for threatened species, the Endangered Species Act’s general rule is that these stringent prohibitions don’t apply.
Unfortunately, the Fish and Wildlife Service has implemented the law in the exact opposite fashion: The general rule is that these prohibitions do apply to threatened species.
This misguided approach hurts conservation efforts by diverting time and resources away from where they are most needed. . . .
Promoting much-needed transparency.
The Endangered Species Act requires that science alone should determine whether to list a species. The costs of protecting a species has nothing to do with whether it is endangered or threatened.
However, the federal government has used this science-only requirement as an excuse to prohibit the identification of the benefits and costs of listing a species.
Based on the final regulations, the federal government would still make listing decisions without considering costs, but would start to identify and communicate the impacts of these listing decisions. . . .
Stopping critical habitat designations that don’t help to conserve species.
Under the Endangered Species Act, the federal government designates critical habitat for listed species, which may include areas that are not occupied by the species. These unoccupied areas, however, must be essential to the conservation of the species.
The new final regulations would help to ensure any unoccupied areas are truly essential, and therefore help to prevent extreme situations.
The new rules would make it easier to remove a species from the endangered list and weaken protections for threatened species, the classification one step below endangered. And, for the first time, regulators would be allowed to conduct economic assessments — for instance, estimating lost revenue from a prohibition on logging in a critical habitat — when deciding whether a species warrants protection.
This rule-change does not allow economic impacts to affect whether a species is listed as endangered or threatened. Indeed, the rule explicitly “acknowledge[s] that the statute and its legislative history are clear that listing determinations must be made solely on the basis of the best scientific and commercial data available” according to five statutory factors. Thus, the rule gives the agency no authority to decline to list a species based on the economic impacts of such decision. If the agency attempted to do so, it would violate the statute and the rule.
An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.
“The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”
