How Environmental Protection and Individual Liberty Can Work Together

WINTER 2018 How environmental protection and individual liberty can work together Property rights are our best tool for protecting the environment Supreme Court win for property rights and government accountability WINTER 2018 03 Today’s environmental laws: Outdated and politicized 06 Pacific Legal Foundation has spent its four-plus decades building Clean Water Act abuses demonstrate a legacy. Yet this legacy is not just one of philosophy or ideology the need for our or Supreme Court victories. We’re also working to build a legacy Constitutionʼs protection around something more tangible—the natural world. of property rights Ideas are important. Our organization exists to vindicate them. 09 But without an actual physical place to engage these ideas, they’re Training the next worth little. And because of that, we want to ensure that the world generation of property in which we live is one where everyone can thrive and prosper. rights champions 10 That’s why we’ve dedicated this issue to environmental law. It’s Property rights are our something we’ve litigated consistently throughout our history. best tool for protecting However, we haven’t succinctly communicated why we take the the environment cases we do and what we hope to achieve in doing so. What you’ll read is the beginning of that discussion. 14 Combating the Regardless of the motive of environmental legislation, it’s clear abuse and misuse of that these laws, along with their attendant regulations, have environmental laws consequences, whether intentional or not. We describe for you 16 those consequences typically encountered by our clients. Supreme Court win for property rights and However, addressing the consequence is not enough. More government accountability importantly, we provide what we believe is the proper constitutional solution to many of the issues that may ail our 17 environment—adherence to a rule of law that respects the rights In the room where it and liberty of individuals. happens: PLF client reflects on Supreme That solution can take many forms, among them: respecting the Court argument rights of property owners to steward their land; separating those 18 that pass the law from those that enforce the law from those that PLF asks the Supreme adjudicate the law; and requiring regulators to work within the Court to protect the confines of the law as written and not drift—regardless of how well right to judicial review meaning—beyond it. 19 Simply put, at PLF, we believe a freer world ultimately results in a ‘A win-win for all of better world. We relish the challenge of providing both. us’: A doctor’s support for PLF will support property rights fight COVER PHOTO PLF client Joe Robertson. Read his story on page 6. Steven D. Anderson president & ceo 2 SWORD&SCALES Today’s environmental laws: Outdated and politicized Damien Schiff senior attorney PLF attorney Reed Hopper (right) argued at the Supreme Court on behalf of John Rapanos (left) in 2006. A HEALTHY ENVIRONMENT is crit- Yet, despite significant devel- federal agency in charge of adminis- ical to human flourishing. Without opments in conservation science, tering the ESA—automatically applies clean water, air, and soil, people can- the law’s basic regulatory structure the ESA’s full land-use restrictions to not achieve their full potential. But hasn’t changed in four decades. Why? threatened species. That’s contrary too often, overzealous government Because the heavy regulatory burdens to Congress’s intent that such protec- bureaucrats and misguided activists it imposes have become a very effec- tions be applied more judiciously for have twisted well-meaning environ- tive tool for government officials and less-endangered wildlife. mental laws. The result has been the special interest groups to limit produc- Such agency misuse of the ESA violation of property rights and other tive use of public and private lands. also can be seen in how the Service liberties. Two related aspects of mod- Whether that actually hurts rather takes advantage of the commonsense ern-day environmental law make this than helps the ESA’s conservation notion that the fewer individuals within situation worse: it’s politicized, and it’s goals doesn’t seem to matter. In fact, a population, the more likely the popu- out of date. one study of ESA litigation between lation will be considered in danger of Take the Endangered Species Act 1990 and 2000 revealed that certain extinction. Hence, the agency will seek (ESA)—the premier federal wildlife green groups brought three times as to carve out of an otherwise healthy protection statute. The ESA estab- many suits to protect threatened spe- population a mini-set of individual ani- lishes a two-tiered framework for the cies as to protect endangered species. mals. The small group is then conve- protection of wildlife: “endangered” You would expect these organizations niently defined as its own “species” or status for the most imperiled species to focus their legal efforts first toward “subspecies” separately protected by and “threatened” status for those saving the more at-risk endangered, not the ESA. less in danger of extinction. The law threatened, species. That they haven’t The coastal California gnatcatcher prohibits—on pain of significant civil suggests that wildlife protection is not shows this numbers game at work. and criminal penalties—the injuring or always their top priority. Of course, the Here is a bird that is found by the mil- harming of any endangered species, government itself is largely to thank lions in Baja California. But accord- but it gives federal agencies the dis- for this upside-down prioritization. A ing to the Service, the gnatcatcher in cretion to decide how much to protect Carter-era ESA regulation from the U.S. Southern California is considered a threatened species. Fish and Wildlife Service—the chief separate “subspecies” under the ESA. PACIFICLEGAL.ORG 3 For that reason, the agency only looked Of course, it’s not just the threats tries to keep everything in place, what- to the bird’s numbers north of the bor- that have changed—so too has the sci- ever the cost. The natural world, how- der when determining to protect it, ence. But here as well the ESA lags. ever, is not static. Ecosystems and the a decision that by the government’s Preserving many different types of ani- species that comprise them are always own estimate will cost nearly $1 bil- mals and plants can be a sensible pol- changing. Part of that dynamism is lion in economic losses. Never mind icy, but trying to save each and every extinction itself. In fact, as Professor that repeated studies have shown no species isn’t. A better way to conserve J.C. Kunich, a prominent ESA commen- important genetic difference among wildlife and habitat is to protect eco- tator, explained, extinction can be eco- so-called gnatcatcher subspecies. systems, not individual species. That logically helpful as a “natural method Commenting on the gnatcatcher approach maximizes the benefits of of weeding the garden . to maximize and related controversies, prominent the evolutionary fitness of the gene environmentalist academic Holly There has been an pool at any point in time.” But the ESA’s Doremus acknowledged that the gov- politicization hampers efforts to bring ernment’s approach to species and “immense expansion the statute, here as elsewhere, into line subspecies designations “invites the of federal regulation with current conservation theory. charge that caprice or political pres- Other environmental legislation sure, rather than objective, value-neutral of land use that has has been politicized, too. The Clean standards, drive [the] decisions.” occurred under the Water Act was originally aimed at Largely because of such arbi- maintaining the health of the nation’s trary and politicized agency action, Clean Water Act— navigable waters. It instead has Congress has failed to pass any sig- without any change become an onerous federal land-use nificant update or improvement to law. As the late Justice Antonin Scalia the ESA. Naturally, this failure injures in the governing sharply put it in Rapanos v. United landowners and others who have been statute—during the States, there has been an “immense ensnared in the law’s regulatory net. expansion of federal regulation of land But it also hurts the very wildlife the past five Presidential use that has occurred under the Clean law was meant to protect, because administrations.” Water Act—without any change in the the threats endangered animals face governing statute—during the past five today differ from those they faced —Justice Antonin Scalia Presidential administrations.” That many years ago. For instance, what- expansion, in turn, has enabled the ever one’s views on global warming conservation while minimizing costs. federal government, when “deciding or its human causation, the 45-year- It also avoids government acting at whether to grant or deny a permit, [to] old ESA is not designed to deal with cross-purposes—trying to protect exercise the discretion of an enlight- harms related to climate change. As one species while indirectly hurting ened despot.” Professor J.B. Ruhl, also a leading another. Yet the ESA’s old-fashioned The same phenomenon is playing environmentalist academic, explained, species-by-species approach to con- out with the Clean Air Act. Many envi- the statute is very poorly adapted to servation is oblivious to ecosystems. ronmental groups hope to use the stat- addressing threats when their “causal Similarly, the ESA’s focus on con- ute to dictate the country’s response to mechanisms are indirect (as in green- serving species reflects a static way of climate change. But the Environmental house gas emissions).” looking at the environment. The ESA Protection Agency (EPA) itself BALD EAGLES: Although the bald eagle is often touted as proof that the Endangered Species Act works, its recovery had little to do with the Endangered Species Act.

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