Environmental policy can be depressing. Few activists seemed to have learned the errors of Malthus’ notion of “overpopulation.” No, humans are a “cancer.” Rather than accepting that we are a part of nature, the claim persists that there’s some elusive equilibrium that would exist if we didn’t.
As a consequence of that worldview, Earth Day is less a celebration of the incredible advances since the first Earth Day than an annual panic that things are getting worse and our time to turn things around is disappearing. This year, for instance, it’s said that we only have 10 years left to save the planet.
Alarmism aside, it’s amazing how much interest in the environment has grown and how that interest has translated into observable environmental improvements. All of this has been made possible by one thing: the incredible economic growth during the last half century.
How would you respond if a neighbor began covering your property with a strange black mold? Once you stopped shouting expletives at him, you’d probably insist that he stop and clean up the damage he’s done. Now imagine that he refused, insisting that the government gave him permission to do it and the damage he’s doing to your property is your problem.
As crazy as that sounds, such arguments are routinely made. In Kentucky, for instance, homeowners near distilleries have noticed a mold growing on everything they own. It’s called “whisky fungus” and it is an unintended byproduct of distilling. In other words, it’s pollution.
As property owners are calling distilleries to account for the damage to their property, the companies are claiming that they can’t be held responsible because they have a federal pollution permit issued under the Clean Air Act. In effect, the companies are asserting that the federal permit eliminates its neighbors’ property rights.
Private investment in environmental conservation is exploding, totaling more than $8 billion over the last decade. That will likely continue to grow. Industry recognizes that consumers are more environmentally sophisticated than they used to be. And, as incomes grow around the world, more people are willing to pay a premium for a better environment. One important tool for this private conservation is conservation easements. But for this tool to be most effective, it’s imperative that courts interpret them neutrally, rather than putting a thumb on the scale for or against conservation.
Along both of the nation’s coasts, property owners, businesses, and environmental groups are concerned about the potential consequences from slowly rising seas. The models for future sea level rise vary widely. But many homes, businesses, and public facilities could potentially be impacted, even under conservative estimates.
If you can’t literally stem the tide, you’re left with adaptation. The burdens of rising seas fall heavily upon a relatively few, giving them strong incentives to invest in strategies to mitigate those harms. (Whether part of those costs should be borne by the society as a whole is another important question, although one beyond the scope of this blog post.)
It’s ironic, therefore, that states most concerned about climate change, like California, restrict property owners from engaging in climate adaptation. The California Coastal Commission, which regulates all development in the coastal zone, has increasingly been reluctant to permit sea walls and other protective devices necessary to shield property from rising sea levels.
Yesterday, the Tenth Circuit joined a disappointingly large number of federal courts to say “yes.” In People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, the court stretched the elastic Commerce Clause—which authorizes federal regulation of economic activity that has a substantial effect on interstate commerce—beyond recognition, upholding federal regulation of noneconomic activity with no appreciable connection to interstate commerce. In adopting this interpretation, the Tenth Circuit overturned a decision from a federal court in Utah holding that the federal government overstepped when it broadly forbade “take” of Utah prairie dogs, a species with no tie to commerce.
From a libertarian perspective, this decision is doubly harmful. First, it undermines, if not completely forbids, the state of Utah’s ongoing efforts to protect the Utah prairie dog without imposing unfair burdens on private property owners. Disproving decades of environmental groups’ insistence that states are unwilling to protect species, Utah admirably stepped in after the federal court enjoined federal regulation. Working with property owners, rather than against them, the state safely and humanely captures prairie dogs in problem areas—backyards, playgrounds, airports, and cemeteries—and relocates them to conservation lands where they can be permanently protected. After decades of suffering under burdensome federal regulations, the future was starting to look bright for both prairie dogs and property owners.
The Clean Water Act is controversial in large part because there’s no realistic chance that an ordinary person could determine whether bureaucrats would deem her land subject to federal regulation (even the Washington Post’s fact checker can’t do it). Yet a property owner who guesses wrong faces federal fines of up to $47,000 a day and imprisonment.
Despite the President’s order to reconsider the much-maligned (and rightly so) WOTUS rule, the problem won’t go away because the foundation for the rule remains in place. That foundation is a guidance document issued after the Supreme Court rejected the government’s excessive claim of authority under the Clean Water Act in Rapanos v. United States. After Rapanos came down, the agencies issued the guidance exploiting every ambiguity in the court’s opinions to reassert expansive authority. In the Daily Caller, I have an article explaining the problems with that guidance document, including that it was never submitted to Congress as required by the Congressional Review Act. As a result, the guidance document cannot be given legal effect and, if it is belatedly submitted to Congress, it can disapprove the interpretation and block any future administration from readopting it.
Because the controversial guidance wasn’t submitted to Congress, the administration has an opportunity to push back against decades of Clean Water Act abuse. Another opportunity for reform would be to shift much of this control from unaccountable federal bureaucrats to states. Under the Clean Water Act, states can take over permitting but the U.S. Army Corps of Engineers has been resistant to ceding control. Read More »
[Update: The Washington Post’s Fact Checker has updated the article to acknowledge this response.]
Last week, President Trump issued an executive order directing government agencies to reconsider the much maligned Waters of the United States (or WOTUS) rule. In the press conference for the order, Trump referenced a case that I litigated at PLF last year on behalf of Andy Johnson, a Wyoming property owner who was threatened with up to $20 million in fines for building a pond on his private property. The President explained that
[t]hese abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states. It’s a horrible, horrible rule.
Although I don’t agree with the President on much, he was exactly right on this point. Imagine my surprise when the Washington Post’s “Fact Checker” gave the President four Pinocchios for his remarks.