Protect Workers, Property Owners From Endangered Species Act Abuses

February 24, 2017 | By JONATHAN WOOD

President Trump campaigned on a promise to repeal 70% of federal regulations, eliminating red tape to promote job growth and economic development. Any regulatory reform effort should initially focus on the low-hanging fruit — those regulations which are needlessly costly and counterproductive. Based on that, regulatory abuses under the Endangered Species Act should be the first scrutinized.

The Endangered Species Act, thanks to its crippling “take” prohibition, has been incredibly disruptive to rural communities, including many of those that supported Trump. For decades, that statute has encouraged environmental special interests to push for ever more species to be listed, to shut down economic activity they dislike. And, although countless jobs have been lost as a result, the statute has reaped only mediocre benefits, including a less than 2% recovery rate for listed species.

The Endangered Species Act is a powerful weapon for environmental groups because it forbids the “take” of any listed species, which prohibits essentially any activity that adversely affects a single member of a species or its habitat. This prohibition deprives owners of private property of the rights that most of us take for granted in owning land.

Consider, for instance, the people of southwestern Utah who cannot build homes, start businesses or protect the airport and cemetery from a local rodent because the rodent in question, the Utah prairie dog, is listed as threatened under the Endangered Species Act.

Representing those residents — who formed the organization People for the Ethical Treatment of Property Owners — Pacific Legal Foundation is challenging the constitutionality of this regulation as exceeding the federal government’s power under the Commerce Clause.

In 2015, a federal court agreed that this constitutional power does not permit the federal government to forbid noneconomic activity affecting a species with no connection to interstate commerce. That decision is now on appeal to the 10th Circuit Court. As the case continues, the Trump administration will have to decide whether to defend this unconstitutional and burdensome regulation.

The incoming administration’s regulatory reform effort should also focus on empowering states to protect the environment in ways more sensitive to the adverse impacts on their residents.

The Utah prairie dog case provides a good blueprint. After the federal regulation was struck down as unconstitutional, the state stepped in and protected the species while accommodating property owners’ concerns, chiefly by moving prairie dogs from backyards, airports and cemeteries to public lands where they could be permanently protected.

The groundwork has already been laid for the Trump administration to reduce the Endangered Species Act’s unnecessary burdens. Last year, Pacific Legal Foundation, representing the National Federation of Independent Business and Washington Cattlemen’s Association, petitioned to repeal a federal regulation that illegally extends the statute’s broad take prohibition to “threatened” species — those facing the least threat.

The president’s appointees can immediately repeal the regulation, which would benefit both property owners and species. In addition to the myriad policy problems, the regulation is illegal. Congress consciously chose to limit this burdensome prohibition to those species facing the greatest threats.

As then Sen. John Tunney put it when advocating for the statute’s adoption, this “stringent prohibition” should “be absolutely enforced only for those species on the brink of extinction.”

Repealing this illegal regulation would also benefit property owners and the economy. Many of the most significant impacts of the Endangered Species Act have been a result of this regulation. For instance, when the northern spotted owl was listed as threatened, the regulation decimated the timber industry in the northeast. Many other rural communities have similar war stories.

Businesses and property owners are not the only ones who would benefit from repealing this regulation. Endangered and threatened species will also benefit. This regulation is counterproductive. By treating species the same, regardless of the seriousness of their threats, it undermines incentives for conservation. Repealing it would encourage conservation through the promise that successful efforts to recover endangered species would be rewarded with the lifting of burdensome regulations.

Although any effort to reduce overregulation will be met with howls from those special interests who benefit from it. By focusing the initial reform efforts on burdensome and counterproductive regulations like this, the Trump administration can blunt the inevitable criticism by claiming the environmental high ground. It should.

Published by Investor’s Business Daily