You may have heard that the Trump administration is proposing changes in the 50-year-old National Environmental Policy Act (NEPA), which mandates federal regulatory environmental oversight of major infrastructure projects. These changes are appropriate and overdue. Here’s why.
NEPA requires federal agencies to assess the environmental effects of their proposed actions before they can go ahead. The actions covered by NEPA are broad, including projects such as building highways and airports, managing forestland, and constructing transit systems.
NEPA was signed into law by President Richard Nixon in 1970. It has not been substantially updated in decades, during which time its Environmental Impact Statement (EIS) requirements have been stretched beyond what the law itself requires. In fact, they have been stretched beyond what the law allows, under our federalist system of government under the Constituion. This a gross example of mission creep.
On multiple occasions, environmentalists have used NEPA to block federal land management plans that would, in fact, have been environmentally beneficial, and to halt local infrastructure projects that are neither federally directed or managed nor substantially funded by the federal government. The U.S. Environmental Protection Agency has tacitly, and sometimes actively, supported these lawsuits.
‘Tied up and Bogged Down’
“America’s most critical infrastructure projects have been tied up and bogged down by an outrageously slow and burdensome federal approval process, and I’ve been talking about it for a long time,” Trump said, when signing the proposed reforms on January 9. “These endless delays waste money, keep projects from breaking ground, and deny jobs to our nation’s incredible workers.
Horses are starving on public grasslands. Here is one possible way to rescue them.
Wild horses and burros range throughout the public grasslands of the United States. With few predators, they face starvation or dehydration, as about 90,000 animals attempt to live on dry lands that can sustain fewer than a third of that.
PERC, the Property and Environment Research Center, has developed a possible solution, one that has now been adopted by the Bureau of Land Management, which oversees those lands. It is an incentive-based plan that pays individuals to adopt horses.
For several years PERC has researched this issue, trying to find a market-based solution that limits the burden imposed on taxpayers and gets horses out of holding facilities and into real homes. In 2017 we came up with the incentive payment program. Now, the BLM will pay an individual $1000 to adopt a horse or burro. The new program will pay qualified adopters $1,000 to help cover the expenses associated with caring for horses and burros.
A guest post by Shawn Regan*.
When it comes to environmental politics, conflict is the norm. Environmentalists have a reputation for being more likely to try to regulate, legislate, or litigate than to bargain with competing users or to simply pay to protect the land and resources they value. Why don’t environmentalists pay to protect what they value? One reason is that they often can’t. Many of the laws and institutions that govern the use of natural resources have the practical effect of prohibiting environmentalists from holding rights to natural resources—thus forcing them to pursue other tactics to achieve their ends.
This is especially true in the American West, where federal and state agencies control much of the land and natural resources. In these cases, environmentalists are more likely to “raid” instead of trade. I explore these issues in a new essay in Reason (based in part on a more-detailed paper that I co-authored with Arizona State University economist Bryan Leonard in the Natural Resources Journal): Technically, any U.S. citizen can bid for and hold leases for energy, grazing, or timber resources on public lands. But legal requirements often preclude environmentalists from participating in such markets. Federal and state rules typically require leaseholders to harvest, extract, or otherwise develop the resources, effectively shutting those who want to conserve resources out of the bidding process. In other words, to acquire rights to natural resources in the West, rights holders must use the resource.
This is an obvious barrier to many would-be environmentalist bidders who may want to acquire such rights for non-use conservation purposes. But, as my essay describes, some environmental activists still attempt to bid. The article includes several case studies and interviews with environmental activists who have tried to pay to protect what they value—only to encounter myriad legal barriers that either prevent them from doing so or significantly raise the costs of such transactions.
One interesting example is the case of environmental activist Terry Tempest Williams. In 2016, she and her husband Brooke attended a protest of an oil and gas lease auction in Utah administered by the Bureau of Land Management. When they learned that some of parcels of public land that were put up for sale didn’t receive any bids, they decided to bid themselves, with the intention of preserving the land instead of developing it. “So we signed up and bought them,” Brooke says. “We paid with our debit card.” All it took was $1.50 an acre (plus an $820 processing fee) to secure the drilling rights to two leases comprising 1,120 acres near Arches National Park. The couple even created an “energy company,” Tempest Exploration Co. LLC, and began paying the annual rental fees associated with the lease. “We have every intention of complying with the law, even as we challenge it,” Tempest Williams later wrote in a New York Times op-ed. “We will pay the annual rent for the duration of the 10-year lease and keep whatever oil and gas lies beneath these lands in the ground.” It didn’t work. The BLM canceled the leases, alleging that Tempest Williams violated the “diligent development requirement” of the 1920 Mineral Leasing Act, which requires lessees to “exercise reasonable diligence in developing and producing” their energy resources.
In an October 2016 letter, the BLM told Tempest Williams that “since you have stated publicly that you intend to keep the oil and gas resources in the ground,” referring to her comments in the Times, “the lease offers are hereby rejected.” Others have experienced similar challenges. Jon Marvel, founder of the anti-livestock group Western Watersheds Project, made a name for himself by becoming the high bidder on several state grazing leases in Idaho. Even though the state has a mandate to maximize revenues from such lands, Marvel was often denied the leases because he did not intend to graze livestock.
And WildEarth Guardians, a group known for its litigation-prone approach, has recently pursued voluntary buyouts of ranchers’ grazing permits—that is, if federal agencies don’t prevent them from doing so. (There is currently no formal legal mechanism that enables environmentalists to acquire or retire federal grazing permits, so the group is only able to negotiate them on a tenuous ad hoc basis). Why shouldn’t environmentalists be able to spend their money on the things they value, just like anyone else?
This article discusses several reasons why reforms to enable conservation-oriented bidding have been so elusive. Some of the opposition is based on the practical difficulties associated with allowing “non-use” of natural resources when “use” is considered an important form of management. Some of the opposition, however, is also rooted in efforts by industry groups to limit competition. And in many cases, environmentalists may simply find it easier to “raid” through political or legal means than to pay the market value of what they want to protect.
In some areas, however, environmental market solutions are beginning to emerge. Many environmental groups are now calling for federal legislation that would enable voluntary buyouts of federal grazing permits. And many western states now allow water rights to be acquired for non-use purposes, such as for instream flows to conserve fish and wildlife habitat.
Last month Audubon Society negotiated an agricultural water rights lease in New Mexico for non-use purposes to enhance stream flows on the Chama River—the first lease of its kind in the state. “The lesson,” I conclude in the Reason essay, “is not that energy development, logging, or livestock grazing is bad, or that every effort to stop such activities should prevail. Rather, it’s that environmental values are real and legitimate, and they are best expressed in ways that acknowledge existing property rights, seek an honest bargain, and reflect the opportunity costs of the other forgone values associated with the land.” Environmentalists have proven they are often willing and able to pay to protect the lands and resources they value, which suggests there is one simple way to reduce land-use conflicts in the American West: Let ‘em bid.
*Shawn Regan is a research fellow and the director of publications at the Property and Environment Research Center (PERC), a free-market environmental institute in Bozeman, Montana.
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.