Posted by: Ann Corcoran | July 28, 2011

Maryland Republicans Bartlett and Harris say endangered species more important than property rights

Understandably Conservatives heads are spinning these days with everything going on in Washington, so it’s no wonder we didn’t notice a vote in the House in which 37 Republicans voted against a three year moratorium on listing species on the Endangered Species list.

Often referred to as a “regulatory taking,” if a species on the list is found to be on someone’s private property, the landowner is prohibited from doing just about anything with his or her property.  It’s a kind of backdoor condemnation or eminent domain.

Here is what author Iain Murray said at National Review On Line today:

So you think the House is serious about the mess we’re in? There was a sign of that when it looked like it would stop any new species being added to the Endangered Species list for three years. This was a great move. The ESA list is a litigation magnet that encourages environmentalist groups to sue the government to add new “species” (many of them recently invented subspecies, as I explained in The Really Inconvenient Truths), costing tens of millions of dollars annually. Further, the ESA chills economic activity by preventing people from developing their land, and is well known to suffer from the “shoot, shovel and shut up” problem that means it is ineffective in protecting endangered species anyway. The proposal was a welcome move towards property rights and away from bureaucracy.

Yesterday, 37 Republicans joined with 187 Democrats to kill the proposal.

Maryland’s two Republicans voted against private property rights and for more regulation, here.

What readers should know about the Endangered Species Act:

The ESA was signed into law in 1973 by Richard Nixon, here.    If a species is listed its critical habitat is identified.   So, for example, as a landowner who is unfortunate enough to have a listed species on his or her property, you could be prohibited from developing your land, or harvesting your trees or doing whatever other economic activity you planned that could harm the listed species (and we aren’t just talking about Bald Eagles, we could be talking about tiny fish).   The phrase “regulatory taking” means that the value of  one’s land is diminished by the ESA with no compensation that one might feel one is due under the Fifth Amendment to the US Constitution (takings clause).

Mr. Murray is exactly right that the Act is used as a “litigation magnet” for environmentalists wishing to halt projects large and small.  I saw this first hand in the 1970’s.  Environmentalists in Tennessee had been attempting to halt construction of a TVA dam—the Tellico Dam—and had little luck until they latched on to the Snail Darter—a little fish they managed to get listed on the Endangered Species list.    I knew the lawyer (Zygmunt Plater) who brought the case and just now see that he teaches environmental law at Boston College.  It was very clear to me (to all of us) that the ESA was being used by Plater (then a young professor in TN) to stop the dam as Murray charges.  (By the way, later it was determined the Snail Darter was not endangered after all).

The Tellico Dam case went all the way to the Supreme Court and in 1978 the Court declared that the law means what it says-–if a listed species’ habitat is threatened, that’s it, the owner of the property cannot do anything to harm the species.

Congress then had to face the fact that they had created a law that would halt any project —it could be a much-needed military facility, a new federal highway, ANYTHING!   So in 1978, the law was amended and a process was built into the law which allowed an escape valve of sorts.  If a species came in conflict with a major federal undertaking then a seven member cabinet level committee (dubbed the God Squad) could be convened to review the case and possibly vote to proceed with the project even if the project would “harm” the species.   Needless to say, the God Squad has rarely been convened because the regulatory process it must follow is so cumbersome.

But, here is the important part—The God Squad escape clause does NOT help you—the private landower!  No Cabinet level committee is going to convene about the woodlot you would like to harvest.

There are innumerable cases of hardship over the years for private landowners, and frankly when Mr. Murray mentions “shoot, shovel and shut-up” he is not kidding.  Faced with the loss of one’s property value, it is not hard to imagine that a landowner could get desperate.

Congressmen Bartlett and Harris shouldn’t have knee-jerked this vote as they surely have!  Two conservative men of science should not be ceding the playing field to the radical environmentalist agenda.

For example, there are free-market environmental groups which have come up with all kinds of innovative ways to “protect” environmental amenities without stealing people’s property rights.  I’ve been away from it for awhile, but one such group is PERC in Montana.  Having visited PERC, I know they have some great minds working very hard to get their positive free-market  message out about the environment, but it’s hard when the mainstream environmental movement has gone far Left, using well-intentioned environmentally-minded people (including Bartlett and Harris) as their shills preferring the “stick” approach to the “carrot” that would be so much more effective in protecting the environment.

For decades I’ve wondered why Republicans can’t seem to break away from the radical environmental playbook and come up with some new thinking on how to protect the environment AND private property rights.


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