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.

Are Global Skeptics Dying Off?

Lindzen spoke at Heartland Institute’s International Climate Change  Conference in July. “They all . . . could recognize that what was called climate science bore little relation to actual science.”

By Jane Shaw Stroup

For the past 30 years, ever since global warming became a public issue, Richard Lindzen, emeritus professor of meteorology at MIT, has questioned the apocalyptic view of climate change. As the topic rose to public attention in the late 1980s, Lindzen was so prominent that his views could not be ignored. Richard Kerr wrote in Science magazine in 1989 that “no other U.S. skeptic has such scientific stature.”

But over time, Lindzen became a target of hostility from advocates of global warming extremism. More disturbing perhaps were sometimes subtle attacks by his colleagues, including editors of peer-reviewed journals. For example, as he recounted in 2008,[1] the Bulletin of the American Meteorological Society published a paper, written with colleagues, that found a strong cooling effect from clouds. But the Bulletin then published a paper disputing this cooling effect without giving Lindzen and his coauthors the opportunity to respond in the same issue (the normal practice). And American Scientist, the journal of the scientific honor society Sigma Xi, refused to publish an article by Lindzen unless he found as a coauthor someone who differed with him on global warming!

On July 25, Lindzen spoke at the International Conference on Climate Change sponsored by Heartland Institute in Washington, D.C. His talk aimed at showing that a significant number of well-known scientists were skeptical about extreme harms from global warming during the past 30 years. His goal was to bring them out of the shadows. Most of the 21 scientists on his list are dead.

On his list were people like William Nierenberg, a physicist who worked on the Manhattan Project and became director of the Scripps Oceanographic Institute, the premier such institute in this country, and Robert Jastrow, professor of geophysics at Columbia University, founding director of the Goddard Institute and the first chairman of NASA’s Lunar Exploration Committee.

There were also Reid Bryson, founder of the Center for Climatic Research at the University of Wisconsin; Joanne Simpson, president of the American Meteorological  Society and NASA’s lead weather researcher; Robert White, NOAA’s first administrator; Fred Singer (still alive and writing at age 94), who established the National Weather Service’s Satellite Service Center and is viewed as the first predictor of the earth’s radiation belts; Ivar Giaevar, who received a Nobel prize for his work in superconducting; and 14 others.

These were leading figures in science, said Lindzen. “They all . . . could recognize that what was called climate science bore little relation to actual science and that there was nothing to suggest the alarm being raised,“ said Lindzen. “Nobody was suggesting that there was no greenhouse effect or that climate doesn’t change. . . . They were simply noting the obvious—that there was nothing unusual in what we were seeing in climate, including extreme events.”

“I’m still puzzling over how it happened that there are so many people who questioned this [hysteria] yet it made no impact on the field,” said Lindzen. One reason was that “they were very often quite private in their questioning.” For example, Joanne Simpson did not speak out until she had retired from NASA. But, he mused, “somehow the rest of us didn’t make a effort at contacting these people. There was very little coordination.”

Lindzen gave credit to Heartland for bringing many skeptics together but seemed to be saying that members of the scientific community did not do what they might have done. The campaign for climate alarm was “highly organized, planned, thought out, funded, and the opposition was completely fragmented.”

[1] Richard S. Lindzen, “Climate Science: Is It Currently Designed to Answer Questions?” Paper given before Euresis (Associazone per la promozione e la diffusione della cultura e del lavoro scientifico) and the Templeton Foundation, Creativity and Creative Inspiration in Mathematics, Science, and Engineering: Developing a Vision for the Future, San Marino, August 29-31, 2008. Updated September 21, 2012.

What Went Wrong with the Obama-Era “Waters” Rule?

The EPA used outdated and controversial methods to justify its expansion of federal regulation of streams, rivers, and lakes, writes R. David Simpson in a new PERC policy paper.

 

By Jane Shaw Stroup

In a new PERC policy paper, R. David Simpson reports on his experience reviewing the cost-benefit analysis of an Obama-era regulation defining “WOTUS.” (In Washington lingo, that is “waters of the United States.”)

Simpson, an economist formerly with the Environmental Protection Agency, expresses regret that he did not press harder to improve the EPA’s cost-benefit analysis of the rule, issued in 2015. The rule was designed to extend the federal government’s jurisdiction over U.S. waters under the Clean Water Act, bringing relatively isolated streams and wetlands under government regulation.

The rule went into effect, but was stayed by a federal court, then reinstated in 26 states. The Trump administration opposes it, although its future is uncertain.

What went wrong? First, the analysis “relied on dated estimates employing controversial methods that are not accepted by all economists,” says Simpson. Second, “it transferred figures from the contexts for which they were originally derived to waters that would have become jurisdictional under the 2015 rule using poorly explained and apparently ad hoc procedures.”

It also raised constitutional questions: “There seems to be a sort of paradox in supposing that waters characterized by their isolation and tenuous connections to other bodies should be subject to federal regulation.” The Constitution authorizes the federal government to regulate only interstate or international activities, he adds.

The analysis was also based on benefits determined by “willing to pay” surveys. Asks Simpson: “Why should landowners be compelled to undertake costly action for which others say they would be willing to pay, but for which the purported beneficiaries are not actually required to pay?”

Simpson suggests that economic research “could be more effective in motivating voluntary agreements to protect waters than in trying to justify compulsory restrictions imposed without compensation.”

In sum, there’s a better route to liberty, ecology, and prosperity.

For a history of the “WOTUS” debates, and a recommendation for the Trump administration, see Jonathan Adler in Cato’s Regulation magazine:

The Trump administration’s effort to narrow and focus federal regulatory efforts under the CWA is among the most significant, and potentially the most beneficial, of the administration’s efforts to reform environmental regulation.

“Should EPA Reverse Its Endangerment Finding on Greenhouse Gases?”

The decision to treat greenhouse gases as pollutants under the Clean Air Act was a mistake and the current administration has a chance to end it, says Joseph Bast of the Heartland Institute.

 

The EPA now regulates greenhouse gases as if they are pollutants, the result of a celebrated “Endangerment Finding” made by the Obama administration in 2009.

Under this rule, the EPA identified greenhouse gases (carbon dioxide, methane, and four others) as pollutants that endangered public health and welfare. Thus the agency added them to the air pollutants it is required to regulate under the 1970 Clean Air Act: carbon monoxide, ground-level ozone, lead, nitrogen oxides, particulate matter, and sulfur dioxide

Treating carbon dioxide as an air pollutant is somewhat ironic since carbon dioxide is well-known as a gas that enriches plant growth.

Therfe is good reason to change this rule, says  Joseph Bast, founder and now senior fellow at Heartland. In a new Policy Brief he wrote:

“The Obama administration pushed through the Endangerment Finding without following the agency’s normal procedures, relying on research that did not meet its own data-quality standards and disregarding extensive commentary opposing its decision by distinguished experts as well as its own staff.”

Now the Trump administration has the opportunity to change this regulation, particularly if new information has developed that changes its assessment. And he says it has.

“While the Endangerment Finding’s defenders claim to have a ‘mountain’ of research in its defense, upon closer scrutiny their case is nothing more than a molehill of real science and data, on top of which is piled reams of speculation based on invalidated computer models and circumstantial evidence.”

Bast’s comments may be partly in response to a multi-authored piece in Science last December that claimed just the opposite. “New evidence about the extent, severity, and interconnectedness of impacts detected to date and projected for the future reinforces the case that climate change endangers the health and welfare of current and future generations,” it said.

Undoubtedly, there is more to come.

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