Yo-yo environmental regulations aren’t good for anyone

July 07, 2021 | By DAMIEN SCHIFF
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Recently, the Biden administration announced plans to cancel various regulatory reforms the Department of Interior had implemented under President Trump to modernize the Endangered Species Act (ESA).

Upon reading the news, the phrase, “Here we go again” comes to mind.

With every change in presidential administrations, it now seems, we just have to accept a dramatic shift in environmental regulation and enforcement philosophy. That’s bad enough from a policy perspective, as it makes it difficult to plan for the future.

In this case, the unwelcome shift is compounded by the fact that the Biden team will be discarding several positive changes the Trump administration put into place that brought some much-needed modernization to the ESA.

This is bad news for animal species and property owners. At a time when we should be striving for an approach that would benefit both people and endangered species, the current administration has chosen a path that is worse for both.

The background: As part of his pledge to review and revise the regulatory tangle that chokes so much of American life, Trump made adjustments to the ESA, including changes to give more flexibility to property owners and improve incentives to encourage private investment in species protection.

These were forward-looking, positive changes that would help to improve the law’s performance while protecting property rights. Pacific Legal Foundation has long advocated for an approach that, rather than burdening and punishing landowners, allows them to partner in the process. In 2018, PLF testified before Congress to provide an expert assessment of where the ESA was falling short and steps that might be taken to improve the law for today’s challenges.

Media coverage often framed the Trump changes as “rolling back” environmental regulations, but that was misleading.

The reforms were better understood as a shift in emphasis to promote greater cooperation and collaboration between landowners and regulators. These approaches have been shown to be effective, but they require a sense of mutual trust and reliability. By shifting the regulatory frame so sharply, the Biden administration has likely done tremendous harm to that sense of mutual cooperation.

Central to the reform efforts was improving property rights protections for landowners. One thing we’ve learned is that when we give property owners more flexibility and offer incentives to help with initiatives like habitat restoration and other goals, we create a “win-win” scenario that allows states, property owners, and conservationists to work together on species protection. The Interior Department attempted this approach under Trump.

Instead, the Biden administration seems determined to revert to the historic standard of placing punitive burdens on property owners—often in ways that violate constitutional property rights protections—without providing much benefit to endangered species.

This is particularly unwelcome news because the ESA simply isn’t working as well as it should to protect species. While the law has an impressive record when it comes to preventing extinction of species, it has failed when it comes to encouraging recovery of endangered species. In the law’s more than 45-year history, less than 3% of the species listed under the ESA have achieved recovery. The changes the Biden administration is calling for will only make it harder to classify a species as “recovered.”

It’s always seemed to me that we should celebrate the fact that species are bouncing back from endangerment and present those cases as proof positive that the law is working to achieve its stated aims. Surely that would be beneficial to ensure ongoing public support for the law. Indeed, one could be forgiven for suspecting that a lot of environmental groups never want to see any animals removed from the list, even if they are recovered. Which raises the question: If no species ever recovers fully enough to be delisted from the ESA, what does success look like?

The bad news is that the “yo-yo effect” in ESA regulation is likely to continue, unless and until Congress steps in to create clear rules that allow landowners and regulators to partner in the protection of endangered species. It would help also for Congress to stop deferring decision-making power to administrative agencies, which only serves to divorce the regulatory power from democratic accountability.

There’s no reason we can’t have government policy that encourages these supposed adversaries to work together in common cause to protect threatened species. But that will require leadership that understands it’s more effective to make partners of property owners, rather than enemies. We came tantalizingly close with the Trump-era reforms, but based on the Biden administration’s moves, that outcome is now further in the future.