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How to "improve" the Endangered Species Act

By Henry Lamb
web posted April 25, 2005

No law has done more to destroy private property rights, or done less to protect endangered species than the Endangered Species Act of 1973. Enormous debate is raging between the environmental activist community, and the property rights activist community. Caught in the middle is Congress, specifically, the House Resources Committee which has the responsibility of crafting changes to the law that will meet the demands on both sides of the issue.

Environmentalists contend that the law should be strengthened, to allow a lower threshold for listing species and by imposing stricter limitations on land use where these species exist -- even if the land is privately owned.

On the other hand, property rights activists correctly report that the law has had less than a 1 per cent recovery rate in its 30-year history, while virtually destroying the economic value of private land designated as critical habitat.

There is, or should be, common ground.

Those who believe that the law should be repealed, must recognize that a sizable portion of the population have been led to believe the law is important. Those who want to strengthen the law must also realize that the law is imposing severe hardship on fellow citizens, while ignoring the fundamental principle of private property rights.

If, as the environmentalists believe, it is essential for the public to protect and preserve these endangered species, then it follows quite naturally that the public -- not private individuals -- should pay the costs.

The people who live in Oregon recognized this basic principle after years of creeping regulations that eroded the rights of private land owners. They adopted Ballot Measure 37 -- with 62 per cent of the vote -- which says, simply, that if government regulations restrict the use of private property for the public good, then the public must pay the landowner for his loss. If the government cannot pay, then the regulation must be waived.

This is the common ground on which responsible environmentalists and private property owners should stand.

If, indeed, a species is so vital to the "web of life" that its habitat must be preserved to the exclusions of any other use, then the public, who makes this determination through its government, should pay the cost. There is no reason why the individual landowner should bear the cost for this so-called "public good."

Environmentalists cringe at the thought of having to pay for the use of private property. They recognize that the millions of acres set aside as critical habitat is worth gazillions of dollars which the government can ill-afford to spend. They know that if the government is required to pay for the use of private property, the property will not be used as critical habitat. Rightfully so. There is still no better arbiter of resource allocation than price.

When price is not a factor, environmentalists make all kinds of excuses to list species, sub-species, populations, and distinct populations -- whether they are actually endangered or not -- as a way to block legitimate land use by the owner. When price is a factor, elected appropriators will have to think twice about just how important it is to protect weeds and bugs and insects, compared to all the other demands on the public treasury.

A compelling case can be made that species would be no worse off had there never been an Endangered Species Act. An even more compelling case can be made that a better way to protect species habitat is to provide education and economic incentives, rather than arbitrary regulatory penalties.

Environmentalists have been so successful with their hug-a-tree and kiss-a-wolf campaigns over the years that very few Congressmen are prepared to repeal this dreadful law. All Congressmen, however, should readily recognize the unfairness of forcing individual private landowners to bear the cost of providing critical habitat for some obscure species which environmentalists say must be saved for the benefit of the public.

The principle established in Oregon's Ballot Measure 37 provides a perfect example of how the two sides of the endangered species debate can find common ground. Once price is allowed to determine the value of these species, the Endangered Species Act will lose much of its sting. In fact, the number of species listed as endangered will likely be dramatically reduced, to the handful of species that may actually be in danger of extinction.

The House Resources Committee should take a good look at Oregon's Ballot Measure 37.

Henry Lamb is the executive vice president of the Environmental Conservation Organization (ECO), and chairman of Sovereignty International.


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