We can pursue Earth Day's goals without endangering freedom
Today marks the 48th Earth Day, a worldwide event meant to encourage the sound stewardship of our planet. A prominent statutory descendant of the original Earth Day ethos is the Endangered Species Act, passed in 1973 to provide a means to conserve the ecosystems upon which endangered species depend. Unfortunately, the good intentions of that statute — much like those of Earth Day itself — have been perverted to make it, in too many cases, a threat to individual liberty and property rights.
The Endangered Species Act requires the "listing" of species determined to be "endangered" or "threatened" with extinction, as well as the designation of "critical habitat" for such species. The Act's regulatory burdens can produce significant economic cost. For instance, the Fish and Wildlife Service (the principal federal agency charged with administering the law) has estimated that the economic impact for the critical habitat of just one listed species — the coastal California gnatcatcher — will amount to nearly one billion dollars.
Because endangered species regulation invokes high stakes, Congress wisely imposed a number of safeguards to keep bureaucratic tendencies to overregulate in check. For example, the law requires that the Service conduct a status review of listed species every five years. Similarly, the Service must abide by strict deadlines when it proposes a change to a species' legal status. Notwithstanding these clear guidelines, the Service has brazenly violated them. Indeed, it took broad-ranging lawsuits in California and Florida to force the Service, after decades of playing scofflaw, to produce five-year status reviews regularly.
Now, one might speculate that the Service's disobedience was simply a desire to shirk work. But the agency has failed to abide by the law even when doing so would merely recognize its — and the Endangered Species Act's — successes.
For example, the Florida manatee has been listed as an endangered species for as long as the Endangered Species Act has been on the books. By 2007, the Service had determined, however, that the manatee had recovered sufficiently to merit "downlisting" to threatened status. Yet nearly five years of litigation was required by property owners and others burdened by the manatee's endangered species regulations to force the Service to make good on its own proposal to move the manatee to threatened status.
The bald eagle presents a similar story. Like the manatee, the eagle had been protected by the Endangered Species Act for decades. By 1999, the eagle had recovered to the point that the Service proposed the bird's delisting from the Act. Yet again, the Service did not act on its proposal for eight years, and ultimately did so as a result of a successful lawsuit brought by a Minnesota landowner whose property was burdened by eagle regulation.
Being slow to act is, not surprisingly, also common with the Service's treatment of less prominent species. The Modoc sucker is a small fish found in northeastern California and southern Oregon. The Service listed the fish in 1985, but admitted in 2009 — as a result of a court-ordered and very tardy status review — that the fish is not endangered and probably never was. Yet the Service took no action on its own finding until it was ordered to do so thanks to another lawsuit.
Lamentably, the Service's foot-dragging continues to this day. The gray wolf has occupied a place on the endangered species list for many years, but the Service in 2014 determined that, thanks in part to conservation efforts from state and local governments and private citizens, the wolf has recovered across most of the continental United States and should be delisted. Yet more than two years later, the regulated public still awaits for the Service to finalize its delisting proposal. In the interim, ranchers and other private property owners must suffer under unnecessary wolf regulations.
As oftentimes happens in environmental law, good ideas become coopted by radical interest groups and compliant bureaucrats. Few would deny the importance of securing clean water or clean air, or preserving scenic places and the flora and fauna that make them so. But laws intended to obtain these goods can be used instead as pretexts to achieve other agendas, typically the blocking of the reasonable use of public and private property. Such misuse is exacerbated when agencies like the Service fail to stay within the guardrails Congress has established to moderate bureaucratic delay and excess. That behavior in turn undermines support for the laws and the credibility of the agencies that apply them.
So on Earth Day, one can and should celebrate the goods of the natural world and the goals of laws meant to protect them — while demanding that those laws not be misused to undermine the environment for human liberty.
Damien Schiff is a senior attorney with Pacific Legal Foundation.