Coyote Blog

A reader emailed me this article about the Endangered Species Act at work:

The sharp chirps of the endangered red-cockaded woodpeckers and the
whine of chain saws sound discordantly in this coastal community of old
pine forests....

The woodpecker's status as an endangered species requires special
measures to try to prevent its extinction and restore its population,
wildlife officials say. That's the law. Wildlife officials gave the
town maps pinpointing woodpecker nests. No building or tree cutting is
allowed within 200 feet of a nest tree without a federal permit. Some
restrictions on development also apply to 75-acre circles around each
nest site to provide foraging area for the birds....

Since word got around this spring that owners could
face problems selling land or building houses where the birds lived,
people have been rushing to clear undeveloped lots of pine trees and
yanking the woodpecker welcome mat.

More than anywhere else in
North Carolina, Boiling Spring Lakes is a place where the coastal
development boom and the federal Endangered Species Act have collided.

"People
are just afraid a bird might fly in and make a nest and their property
is worth nothing," said Joan Kinney, mayor of Boiling Spring Lakes in
Brunswick County. "It is causing a tremendous amount of clear-cutting."...

Bonner Stiller, a state lawmaker from Brunswick County, has owned a
pair of lots as an investment here for more than 20 years. He cleared
them recently. Stiller said he was sorry to lose the trees but wanted
to protect his investment.

"You had to get in line to get
somebody with a chain saw," Stiller said. "I have not a single pine
tree left. Folks around here are terrified of the prospect of losing
their property. That causes people to get out there and find out what
they can do to protect themselves."

In the past, I have divided environmental law into two categories:  emissions law, which is not only consistent with but a must for the maintenance of a strong property rights regime; and land use law, which tends to be an affront to property rights.  You can read more on this distinction here.  This situation is a great example of why land use environmental law is such a problem.

Take a step back.  Consider that some (but by no means all) people in this country value the continued existence of the red-cockaded woodpecker.  There are several ways they might pursue this goal, which I will put in order of decreasing attractiveness:

• They can get together, voluntarily pool their money, and seek to purchase land that might be habitat for the woodpecker and voluntarily set aside what is now their land from development.  This is the best solution, and the only one that operates without resorting to the use of force against individuals.  Oranizations like the Nature Conservancy and other land trusts work this way.
• They can get the government to tax everybody in the country a few extra cents, flow these cents together into big dollars, and have the government buy the land (or seize it via eminent domain) and set it aside as open space or parkland.  This takes money by government force from people who don't value the woodpecker's survival, but at least it spreads the cost wide and thin.
• They can get the government to declare that the twenty-five or thirty people who have these birds on their land can no longer do anything, from development to tree-cutting, on their land.  This option is the worst, because it lands the entire cost of the woodpecker's survival on just a few individuals, and it costs these individuals inordinately high amounts of money in the form of reduced property values  (if you can't do anything to a piece of raw land, the resale value effectively drops to zero).  I personally hold a piece of raw land for future development of a vacation or retirement home.  A substantial portion of my net worth is in this land.  If it were to be suddenly made worthless, much of my life's savings would be gone.

As an interesting note, I have ranked these options in descending order with an eye to fairness and individual rights.  However, if we instead rank these options from the perspective of the average Congressman and his/her political calculations, we actually get the reverse order!  The first option of private action is the worst from your average Congressman's point of view, because then there is nothing they can take credit for in their next election campaign.  The second option is better, but would involve a tax or deficit increase he might conceivably be dinged for.  The third is the best for our average politically-calculating Congress critter, since it results in an outcome he can take credit for with important interest groups, and the costs are almost totally hidden, and born by just a few people who don't have many votes and may not even be in his district.  Not surprisingly, this is the approach Congress has taken, via the Endangered Species Act.

There is some hope that this problem may eventually get worked out the right way, at least in Boiling Springs Lake:

The Nature Conservancy hopes to help. Since 1999, it has acquired about
6,500 acres that form a horseshoe around the center of town. The land,
much of which is wetlands, has two groups of woodpeckers. Woodpeckers
typically nest in clusters of 3 or more birds with one breeding pair
and helpers. In time, the land could support six or eight clusters as
the conservancy adds more land for a nature preserve.

As I wrote here, I think of environmental issues in two categories:

1. Regulation of pollution and emissions that affect other people's property.  These regulations are essential to the maintenance of a system of strong private property rights.  Without them, we would all be in court every day suing each other for damage to our property or water or air on our land from neighboring lands. Of course, we can all argue about whether set limits are reasonable, and we do.
2. Regulations of land use that effects only your own land.  This is a relatively new area of environmental law, ushered in by the Endangered Species act and various wetlands regulations.  These regulations say that even if your proposed land use doesn't create any emissions that affect anyone else, the government may still ban your land use for some other environmentally related goal (habitat, watershed, anti-sprawl, the list is endless). 

These land-use laws constitute by far the most distressing area to me in environmental law.  In the worst cases, these laws can result in what are effectively 100% takings of a person's land without any compensation. (Example:  you buy a lot on the ocean for $500,000 to build a beach house.  Before you can build it, new regulations are passed making it illegal for you to build a house on that land.  Yes, you still own the land, but it is now worthless to you since you cannot use or develop it).  Good article on this here (pdf) and a listing of Cato Institute articles on this topic here.

The government is of necessity involved in #1, though we can argue that some regulatory structures are more efficient than others (e.g. trading vs. command and control).  Government involvement in #2 is often a mess, and is one reason why private conservation groups and land trusts have made so much headway.

Reason has recently released a fairly comprehensive roundup of private conservation efforts that goes into much more detail on this topic.

Currently, Congress is considering scaling back on tax breaks for conservation easements.  As habitat protection and open space have become larger environmental issues, conservation easements have gone way up in use.  As with most government programs, the laws of unintended consequences have taken over, and many have found ways to get tax breaks some feel are undeserved.  Nature Noted has a long series of posts on the debate. 

I have mixed feelings on the change.  To understand this, lets take a step back and look at government environmental policy.  As I have written in the past, I think of government environmental legislation in 2 parts:

1. Regulation of pollution and emissions that affect other people's property.  These regulations are essential to the maintenance of a system of strong private property rights.  Without them, we would all be in court every day suing each other for damage to our property or water or air on our land from neighboring lands. Of course, we can all argue about whether set limits are reasonable, and we do.
2. Regulations of land use that effects only your own land.  This is a relatively new area of environmental law, ushered in by the Endangered Species act and various wetlands regulations.  These regulations say that even if your proposed land use doesn't create any emisions that affect anyone else, the government may still ban your land use for some other environmentally related goal (habitat, watershed, anti-sprawl, the list is endless). 

These land-use laws constitute by far the most distressing area to me in environmental law.  In the worst cases, these laws can result in what are effectively 100% takings of a person's land without any compensation. (Example:  you buy a lot on the ocean for $500,000 to build a beach house.  Before you can build it, new regulations are passed making it illegal for you to build a house on that land.  Yes, you still own the land, but it is now worthless to you since you cannot use or develop it).  Good article on this here (pdf) and a listing of Cato Institute articles on this topic here.

I have for a long time been a supporter of the Nature Conservancy and other land trusts (see Nature Noted site linked above for lots of links and info).  These trusts works to reach the goals in #2 above but with private money instead of government regulation and takings. 

Back to the issue of conservation easements.  It is becoming clear to me that while deals made by the Nature Conservancy rely on private money, they also rely on government subsidy through conservation easement tax breaks.  Their actions are not as private as I thought the were.  And therefore my mixed feelings.  I still think that their activities, even with the tax breaks, is more fair and probably much more efficient than the government takings approach.