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.
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, 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.”
 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.
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.
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.
- Climate Change is a vast “tragedy of the commons” that could end in a Doomsday spiral, says Richard B. McKenzie in Cato’s Regulation magazine.
- Cato has shut down its global warming center; climatologist Pat Michaels and meteorologist Ryan Maue are out.
- “Genetically altered insects could save millions from malaria but are anathema to ‘agroecologists,’” says Richard Tren in the Wall Street Journal (behind a paywall).
- Q. Why are we still looking for oil and gas? A. “Rampant corporate irrationality,” says Lee Wasserman in the New York Times
Does the world face the extinction of 1 million species due to human activity? A UN Report says so.
Is There an Extinction Crisis?
An intergovernmental group sponsored by the United Nations recently announced that the world is facing the extinction of 1 million species, all because of human activity. “Nature is declining globally at rates unprecedented in human history — and the rate of species extinctions is accelerating,” said its news release.
Scary stuff. But is it true? The International Union for the Conservation of Nature (IUCN) keeps a record of actual extinctions and in 2008 reported that over 500 years there have been 800 known extinctions. Furthermore, the extinctions peaked in the nineteenth century and have been declining since. See also, Gregory Wrightstone.
Here’s Matt Ridley’s take:
Species extinction rates of mammals and birds peaked in the 19th century (mostly because of ships taking rats to islands). The last extinction of a breeding bird species in Europe was the Great Auk, in 1844. Thousands of years ago, stone-age hunter-gatherers caused megafaunal mass extinctions on North and South America, Australia, New Zealand and Madagascar with no help from modern technology or capitalism.
That’s not to say extinctions don’t still happen but by far the biggest cause is still invasive alien species, especially on islands: it’s chytrid fungi that have killed off many frogs and toads, avian malaria that has killed off many of Hawaii’s honeycreepers, and so on.
S. Dillon Ripley of the Smithsonian Institution predicted in 1970 that in 25 years, somewhere between 75 and 80 percent of all the species of living animals would be extinct. That is, between 75 and 80 percent of all species of animals alive in 1970 would be extinct by 1995.
In 1979, Oxford University biologist Norman Myers stated in his book The Sinking Ark that 40,000 species per year were going extinct and that a million species would be gone by the year 2000. Myers suggested that the world could “lose one-quarter of all species by the year 2000.”
Bailey includes additional failed predictions by Thomas Lovejoy and Al Gore.
“The principal conservation benefits of trophy hunting in Africa are the creation of economic incentives to conserve wildlife habitat and healthy wildlife populations. The potential of revenue generated by trophy hunting transforms wildlife and habitat into economic assets for individuals and communities.” Catherine Semcer, in congressional testimony.
A “Cecil-the-lion” bill before Congress would make it almost impossible for Americans to go trophy hunting in Africa. However, in congressional testimony on July 18, Catherine Semcer, a research fellow with the Property and Environment Research Center, explained why trophy hunting actually helps preserve lions and other endangered species:
“The principal conservation benefits of trophy hunting in Africa are the creation of economic incentives to conserve wildlife habitat and healthy wildlife populations. The potential of revenue generated by trophy hunting transforms wildlife and habitat into economic assets for individuals and communities and allows hunting to be competitive with other land-use options.“
Semcer was expressing a view that is shared by many wildlife managers. The animals Americans like to go see as tourists and most want to preserve are considered pests by local villagers. They kill the cattle and eat crops, so locals have no economic interest in their preservation. On the other hand, controlled hunting, with revenue sharing by the locals, makes these animals an income-producing resource, worth protecting against poachers and people who would poison them. See “How Trophy Hunting Can Save Lions” and “The War on Wildlife Trade.” Two other witnesses at least partially supported Semcer’s view that trophy hunting is valuable for conservation.
The bill, proposed by Natural Resources Committee chairman Raúl Grijalva, would ban importation of lions and other large animals into the United States if they are being considered by the U.S. Fish and Wildlife Service as threatened or endangered. The name stems from the notorious death of a lion in Zimbabwe. Called “Cecil,” the lion had been studied for many years (and thus wore a collar). He was in a protected area but was lured by hunting guides to a place where he could legally be killed. The death of Cecil caused an international uproar (not all the immediate claims were accurate, it was later learned).
Craig Packer of the Lion Research Center at the University of Minnesota said he does not oppose hunting, but he said that trophy hunting is in “desperate need of reform.” And, he said, typical prices for trophy hunting are under $25,000, not enough to provide significant funds for conservation.
Patience Gandiwa, executive technical advisor for the Zimbabwe Parks and Wildlife Management Authority, said that trophy hunting should be in the “toolbox.” (She also remarked that while the media touted Cecil, it was “just an ordinary adult lion” to local people, who do not give names to wild animals.)
Three other witnesses—Iris Ho of the Humane Society International, Elly Pepper of the Natural Resources Defense Council, and Muchazondida Mkono from the University of Queensland—endorsed the bill. Mkono said that hunting policies are corrupt, that trophy hunting is a “rich boys’ club,” and benefits to communities are merely “token.”