March 1, 2013

TANSTAAFL: The ESA does impose burdens on property owners

By Jonathan Wood Attorney

Earlier this month, Senator David Vitter published an op-ed arguing that the federal government’s implementation of the Endangered Species Act fails to account for negative effects on economic growth and private property rights.  Last week, Taylor Jones from WildEarth Guardians published a response.  Ms. Jones argues that the ESA has only minimal effects on property owners:

The effects of species listings on private landowners and public land users are minimal.  A survey conducted from 1979 to 1999 found less than 1 percent of federally funded or permitted activities—two out of 11,000 projects reviewed annually—were prevented from moving forward because of protections for endangered species.  The law simply requires commonsense measures to minimize harm to imperiled species.

However, Ms. Jones’ evidence—the low rate of project denials—doesn’t justify her conclusion.  A rational property owner, knowing federal approval is required, will only apply for a federal permit if she thinks it is likely to be granted.  If she doesn’t, the project will be abandoned earlier to avoid the costs and delays of the permitting process.

This is not the only reason that the rate of permit denials is a poor measure of the effects of the ESA on private property owners.  It also doesn’t account for the costs of complying with what Ms. Jones refers to as “commensense measures to minimize harm to imperiled species.”  These additional costs include limits on the use of property due to the broad “take” prohibition and the costs of complying with conditions that the government places on permits for development of critical habitat.  The benefits of species protection might exceed these costs, but the costs shouldn’t be ignored and should be borne by the public rather than a few unfortunate property owners.

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