feds to cut property rights under esa endangered species act PLF 102712

Ever since the U.S. Supreme Court announced the Endangered Species Act was intended to protect species “whatever the cost,” the U.S. Fish and Wildlife Service and National Marine Fisheries Service have enforced the ESA with a callous “blank check” mentality. That is, without regard for the effects on people. Under the ESA, it is a crime to harm any species listed as “threatened” or “endangered.” Among other things, this prohibition has stymied development nationwide and driven up the cost of energy, transportation, housing, food production, and flood and fire protection. But the greatest drag on the economy is the Act’s impingement on private property rights.

When a species is listed, these agencies are required to designate “critical habitat” for the species. Depending on the species, this can include a few acres or thousands of square miles, on both public and private lands. Once an area is designated as “critical habitat,” the federal government obtains a virtual veto power over the land’s use. Any adverse modification of such areas may be deemed harmful to the species and therefore prohibited without federal approval. But, to protect landowners from this type of heavy-handed enforcement, Congress amended the ESA to require the Fish and Wildlife Service and the National Marine Fisheries Service to consider the best scientific and commercial data available, including the economic consequences of designating any area as “critical habitat.” Where the benefits to the species are small and the costs of designating any particular area as “critical habitat” are high, the agencies may exclude the area from regulation.

The U.S. Supreme Court has said that this is required “to avoid needless economic dislocation produced by agency officials zealously but unintelligently pursuing their environmental objectives.” But the agencies have never been on board with this. To minimize the apparent economic consequences of designating “critical habitat,” these agencies routinely look at only the incremental effects of the designation while ignoring the cumulative effects. Some courts have correctly concluded that this approach necessarily understates the economic impacts of “critical habitat” making the required analysis a nullity. But the Fish and Wildlife Service and National Marine Fisheries Service are proposing to double down on their marginal economic analyses by adopting new regulations that weaken the ESA’s property rights protections even further. They propose making the analysis both subjective and discretionary. We take issue with this illegal rewriting of the ESA in extensive comments submitted to the agencies today.