Make environmental regulations sensible again

Originally published by The Hill, June 12, 2018.

In one of his first executive actions after moving into the White House, President Trump declared war on harmful, job-killing regulations. Indeed, according to the American Action Forum, he has cut nearly four regulations for each new one—exceeding even the ambitious 2-to-1 goal he set at the beginning of his term in office.

Unfortunately, despite the president’s best intentions, many executive branch agencies have dug in their heels to protect rules that should have long since landed on the cutting room floor. These rules cost property owners and entrepreneurs millions of dollars.

Take, for example, the U.S. Fish and Wildlife Service’s outrageous rule that designated 1,500 acres of private land in Louisiana as “critical habitat” for the endangered dusky gopher frog of Mississippi. The problem? The frog would not survive on this Louisiana property if you moved it there. To turn this land into frog habitat, the property owners would have to cut down all their trees, replant different trees, and begin regular prescribed burns to create a frog sanctuary. They won’t do that. And there’s no need, because the agency designated another 5,000 acres of land in a neighboring state where the frog already lives and can actually survive.

The federal government estimated the absurd frog habitat designation, ostensibly made pursuant to the Endangered Species Act, will impose costs of up to $34 million on the private landowners over just 20 years.

One can’t help but imagine the ridicule (perhaps via Twitter) President Trump would heap on such a rule if it were presented to him. Nevertheless, the Fish and Wildlife Service and the Department of the Interior are defending this regulation all the way to the Supreme Court, which agreed to hear the landowners’ request for relief.

The feds claim their authority to designate critical habitat is essentially unfettered and that the land could serve as helpful backup in case of catastrophe.

Unfortunately, this is not the only bad critical habitat designation the agency should abandon. For example, the Endangered Species Act rule declaring critical habitat for the endangered jaguar likewise defies common sense and the law.

A few years ago, the agency declared thousands of acres of land in New Mexico critical habitat for the jaguar, even though the agency calls the habitat of only “marginal” value to the species. In fact, jaguars prefer the swampy savannas or tropical rainforests of Central and South America, which is why the nearest breeding jaguar population is 130 miles south of the United States.

The Endangered Species Act specifically requires land to either have been occupied by the species at the time it was added to the endangered and threatened species list, or that it be “essential” to a species, not merely of marginal value. The agency flagrantly disregarded Congress’s intent when it listed vast portions of New Mexico for the jaguar.

This designation has real consequences for New Mexico’s residents. Many will needlessly face additional regulatory burdens when seeking federal permits for activities in the area. The designation will also likely impede development of community infrastructure such as roads and pipelines, as well as range improvements for cattle ranches that are important to the local community and economy. Perhaps most startling, the designation creates regulatory hurdles for forest fire management strategies, such as prescribed burns, in a fire-prone region.

Meanwhile, while the Fish and Wildlife Service enforces nonsensical critical habitat rules in Louisiana and New Mexico, the Environmental Protection Agency (EPA) takes its own nonsensical and business-destroying position in Michigan. There, in a small upper peninsula community known as Marquette, the locals planned to build a road to shuffle large industrial mining trucks away from busy city streets and schools. The new road would assist local industry, make city streets safer and decrease pollution by saving over 450,000 gallons of fuel yearly, since it would provide a shorter, more efficient route.

After the community invested heavily in planning and permit applications, EPA bureaucrats shut the project down, claiming it would impact wetlands. Local officials offered to dedicate to conservation 26 acres of wetlands for every one acre impacted by the project, but the feds refused.

Fortunately, the EPA’s counterproductive interference with Michigan, and the critical habitat designations for the jaguar and the dusky gopher frog, still face legal challenges. Even if the agencies continue to defend these absurd rules, the courts—including newly-appointed federal judges—may give them the treatment they deserve.

The Supreme Court recently agreed to consider whether the Fish and Wildlife Service violated the Endangered Species Act when it designated the dusky gopher frog habitat. If the court sides with the property owners, this would provide long-term help to property owners that endures beyond this presidency. It may also help the property owners challenging the vast critical habitat designation for the jaguar.

But for Marquette, Michigan, even if they can convince the Supreme Court to hear their case, they have a long and costly fight to get the road that would give their community and local economy a lift. Their best hope is that the EPA and Department of Justice (which is fighting the community in court) change course and get in line with President Trump’s stated priorities.

Christina Martin is an attorney with Pacific Legal Foundation, a nonprofit public interest organization that litigates to defend Constitutional and individual rights and that is litigating each of these cases. She represents the farmers’ groups and some of the property owners challenging the jaguar and dusky gopher frog critical habitat designations.