The Breached Michigan Dam Was Supposed to Save Mussels?

Thirteen years of regulatory oversight?

From the Detroit News:


Numerous violations and longstanding concerns that the Edenville Dam could not withstand a significant flood led the Federal Energy Regulatory Commission to revoke its license for power generation in September 2018.


“Thirteen years after acquiring the license for the project, the licensee has still not increased spillway capacity, leaving the project in danger,” wrote Jennifer Hill, director of the division of Hydropower Administration and Compliance. “The spillway capacity deficiencies must be remedied in order to protect life, limb and property.”

Saving Mussels not People?

Also from the Detroit News:


Days after feds revoked the dam’s license to generate power, the state assumed oversight, inspected the dam and declared it and its spillways to be in “fair structural condition.”


Over the next two years, state regulators appear to have focused increasingly on what they said was the company’s unauthorized drawdown of winter water levels of Wixom Lake, which they said created a danger to freshwater mussels.

Continue reading “The Breached Michigan Dam Was Supposed to Save Mussels?”

Why Should We Endorse Trump’s NEPA Reforms?

By H. Sterling Burnett

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.

Continue reading “Why Should We Endorse Trump’s NEPA Reforms?”

Rescuing the Wild Horses on Public Lands

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.

From PERC:

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.


See PERC’s 5-minute video.

Let Environmentalists Bid

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.

Monumental Abuse of the Antiquities Act, Part I

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.