What sort of federal environmental reform will we get?

With a Republican-controlled Congress and a new, unpredictable President who campaigned against several of his predecessor’s high profile environmental policies, it seems all but inevitable that some sort of environmental reform is coming. That may be a broad reform of one of the major statutes. Or it may be changes to the regulations implementing them. Having no inside knowledge, I can only speculate or rely on the (often wild) speculation of others. Although the environmental left fears, or at least fundraises on the fear, that the reform will mean open-season for polluters, I hope that it will be more along the lines of federalism or libertarian environmentalism. (But, as I said, I have no inside knowledge, so this is just a hope.)

The Progressive Farmer highlights several, reasonable regulatory reforms that would increase freedom without harming the environment, and perhaps providing environmental benefits. The first, which has been pushed by 18 states, calls for the repeal of a recently enacted regulation that permits the U.S. Fish and Wildlife Service to designate “critical habitat” for endangered species on private lands that are not only unoccupied by the species, but  also unsuitable for the species. For instance, the Service designated private lands in Louisiana as critical habitat for the dusky gopher frog even though no frogs live there and couldn’t without substantially modifying the site (which the private owners have no intention of doing). Designations like this impose significant restrictions on private property owners with no compensating benefit for the species. If anything, they distract limited resources that could otherwise go to real conservation.

The second proposal, from several petitions PLF has filed on behalf of NFIB and the Washington Cattlemen’s Association, is to repeal the regulation forbidding the “take” of any threatened species, despite Congress’ decision to expressly limit that prohibition to endangered species. Although I think this is legally required, repealing the regulation would also benefit listed species. Currently, property owners have little incentive to devote time and resources to recovering endangered species. If they do, and even if they’re successful, they’ll receive no reward for their efforts. The regulation ensures that the same burdensome restrictions will continue to apply even if a species recovers to threatened status.

This undermines the incentives for conservation—perhaps explaining why the recovery rate under the statute is an abysmal 2%—and it also radically expands the statute’s burdens. It is very easy to get a species listed as threatened. Courts have recently upheld the listing of healthy species if a model predicts that it may decline a century from now. As a standard for listing, that’s remarkably lax. Yet, on that basis, the federal government imposes significant restrictions on private property owners, punishable by huge fines and even imprisonment.

Repealing this regulation would be a win-win. However, I have no doubt that any reform will be met with the usual apoplectic response from the environmental organizations who benefit from the status quo. In fact, that’s already started. Environmental groups have already begun massive fundraising campaigns by stoking fears that the ESA will be “gutted;” that “climate deniers” will be in charge—which has been redefined to include those who accept human-induced climate change but question what the most cost-effective response is; and that by withdrawing the recently adopted WOTUS rule, the implementation of which has already been blocked in 9 states, businesses will have free-reign to pollute rivers. Accepting that many environmental groups will oppose any reform, it would be wise to focus on reforms that would also benefit the environment, to seize the moral high ground.

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