April 14, 2014

Nature Conservancy reminds us that there doesn't have to be conflict between environmentalists and property owners

By Jonathan Wood Attorney

The New York Times reports on the Nature Conservancy’s innovative program to provide “pop-up” habitats for migrating birds. The plan is pretty simple: The Nature Conservancy’s supporters provide information about bird sitings so that it can develop a map of when and where birds migrate through California’s central valley. With this information, the group pays rice farmers to keep their fields flooded during the time that birds are expected to be migrating over them. This provides key habitats to the migrating birds.

This effort is notable and encouraging because it’s all done privately and voluntarily. Rather than coercing a few private property owners to bear the costs of providing a general benefit to society — which the Constitution’s Takings Clause is designed to protect against — a private conservation group is paying for the environmental protection that it wants. The resulting environmental benefits are achieved at the lowest possible costs, because the conservation group internalizes them. And the compensated property owners don’t suffer an unfair loss.

Compare this to the approach generally taken under environmental statutes. The Endangered Species Act, for example, protects the delta smelt without regard to cost, which it imposes on a relatively small group of property owners. Neither the government bureaucrats nor the environmental groups that push these regulations have good incentives to consider the cost because they’re not going to bear them. As a result, half a million acres are fallowed.

Interestingly, to the extent that the water used to provide bird habitat is pumped from the delta, the water cutbacks for the delta smelt may actually frustrate this voluntarily effort.

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