Just because a policy feels good, doesn't mean it works.
Part 1
Part 2
Citations:
United States Code (2008). Conservation: Endangered Species. USC Title 16, Ch. 35, Sec. 1531-1544.
Link
Brown, G. M., Shogren, J. F. (Summer 1998). Economics of the Endangered Species Act. The Journal of Economic Perspectives, 12(3), 3-20.
Link
Lueck, D., Michael, J. A. (Apr 2003). Preemptive Habitat Destruction under the Endangered Species Act. The Journal of Law and Economics, 46(27). Retrieved November 3, 2008, from Lexis Nexis Academic database.
Link
Sunday, July 19, 2009
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As far as the Endangered Species Act being unconstitutional, it doesn't really seem to be.
Again, here's the relevant part of the Fifth Amendment, the Takings Clause: ". . . nor shall private property be taken for public use, without just compensation". That's not setting in place the idea of eminent domain, but rather just putting a couple of limits on it: if the government is taking land for public use, it must be paid for in a reasonable way.
So, what are the powers granted to the Federal government by the ESA as far as land acquisition? That's covered in section 5a. According to section 5a(1), the Federal government can acquire the land by means of the terms of the Fish and Wildlife Act of 1956, the Fish and Wildlife Coordination Act, and the Migratory Bird Conservation Act. I went to read through those and see what they said about acquisitions and seizings and the like.
In the Fish and Wildlife Act, the government can take private property in four ways. According to section 742(c), the Federal government can take private property that was placed as collateral in cases of defaulted loans made by the Federal government to fisheries and the like. That situation obviously doesn't fall under the Takings Clause.
Section 742f(b) states that the government can accept private property as a gift or bequest. So that doesn't fall afoul of the Takings Clause, either.
Section 742j-1(c) states that the government can seize private property that was directly used to violate the terms of the Fish and Wildlife Act. No problem with the Takings Clause there.
Section 742j-l(f) states that the government can seize private property that was used to violate customs laws. Again, the Fifth Amendment has nothing to say about that.
Then there is the Fish and Wildlife Coordination Act. In this, section 663 seems to be the relevant part regarding the government's acquisition of property. It relates to waterways and associated land that is already being worked on and improved and managed by the government, though. So it's a reassigning of government land rather than a taking of private land.
The Migratory Bird Conservation Act grants government the ability to purchase or rent private land in section 715d(1). However, it stipulates that the approval of the state governor is needed and that the landowner must be paid a fair price. So that follows the limits put in place by the Takings Clause in the Fifth Amendment. Section 715d(2) of the MBCA also mentions land given as a gift.
So those are all the ways in which the government can acquire private property according to section 5a(1) of the Endangered Species Act.
Section 5a(2) mentions more. According to it, the government "is authorized to acquire by purchase, donation, or otherwise" any "lands, waters, or interests therein" that are part of the habitat of any critter on the endangered species list, or any land that is not directly part of the habitat but which is essential for the continued survival of that habitat. That's a much broader and more vague assignment of power. The key words in it for this issue are "purchase", "donation", or "otherwise".
If the government is to purchase the land, the Fifth Amendment states that it has to be paid for by means of just compensation. So there isn't any constitutional problem regarding the purchase of the land so long as certain guidelines are followed.
If the government accepts the land as a donation, then there isn't any problem.
It's the "or otherwise" part that is problematical. It simply leaves open the possibility of other means of acquisition, it doesn't mention any specific means or limitations. However, there are possible scenarios that could fit in the "or otherwise" category and still be perfectly legal and constitutional. For example, instead of purchasing the land the government could rent it. Rather than using eminent domain for what is known as a complete taking (which would be where the land and all property rights are fully given over to the government), it could instead be a temporary taking or even just an easement. In either case, the laws regarding eminent domain still apply: the government would have to pay rent based on fair value. Since the property's owner is being justly compensated, the Fifth Amendment wouldn't be violated.
So section 5a(2) of the ESA doesn't actually grant the government any land acquisition powers that defy the Fifth Amendment or Constitution. It leaves the possibility open as far as just the ESA itself is concerned, but any additional possibilities would still have to follow other laws and regulations.
Thus, neither part of section 5 in the ESA explicitly grants any powers to the government that violate the Takings Clause of the Fifth Amendment, nor any other parts of the Constitution that I am aware of. So the ESA isn't unconstitutional in that regard, at least.
Of course, this just applies to the intent of the ESA. The actual application of it is a different matter. It is entirely possible that somebody in the government has or will take private land without just compensation. But if so, then that person isn't actually following the ESA and is in fact violating the terms of the ESA.
Personally, I think that section 5a(2) really presents the best possibility for making the ESA work. That "or otherwise" phrase means that the government could use that renting idea I mentioned earlier.
As it is, the best that property owners can hope for is the recent "Safe Harbor Policy". This basically says that if the property owner acts to preserve the specified habitat on his property in good faith, then no additional regulations will be applied. So if he were to preserve a swamp on his land that was essential to some endangered species, he would be allowed to make whatever use he wants of that wetland so long as it didn't infringe on the ESA. Of course, that's a rather poor consolation to the landowner, since he'd be able to do exactly the same and more if the land wasn't considered protected. It's saying that he'll only suffer a partial loss rather than a total one. Yay.
A better idea would be to make it no loss at all. If the government is wanting that swamp to be preserved, then it should enact an easement whereby the person still has some rights related to it, and where he is paid a fair value rate in rent.
This could also be enlarged to include any commercial loss he might suffer. As the ESA stands now, people can be granted an exemption in certain cases. If it can be shown that declaring a forest on a lumber company's land to be a protected habitat would cause the owner of the company undue financial harm, then he can be granted a one-year waiver (a one-year waiver can also be granted to an individual if it can be shown that a recently-declared endangered species is an essential food source for him). But after that year is up, the landowner is out of luck. So either he'll have to log that entire property within one year (which would then put the endangered critters out of luck as well), or else accept a loss.
If it could instead be arranged that the government would pay the landowner the market value for that lumber, then the landowner would be able to still run his business without the need to destroy the habitat. Granted, such a program would be tricky to manage; there would be plenty of people trying to take advantage of it and be paid for lumber that they never even planned to cut down in the first place. But it could probably be done, and would probably be more successful than the current setup.
Another idea would be something like tax breaks for people with protected habitat on their land. Then you could have people actually encouraging certain vital trees and plants to grow on their property, in hopes that they could have that part of their land declared essential and thus get a tax break.
Making landowners actively want to have protected habitats on their land is about the only way to really make the ESA truly effective.
Oh, and one minor correction: the EPA doesn't enforce or interpret the Endangered Species Act. That's the job of the US Fish & Wildlife Services and of NOAA. Which I suppose sort of makes sense in its own way, though then you wonder why have the EPA separate from those agencies in the first place. . .
The ESA constitutional debate usually involves two questions. In both instances, the discussion is usually much ado about nothing.
The first constitutional question is whether Congress has the authority based on the commerce clause to regulate endangered species? Considering this issue, courts look for a sufficient nexus to commerce. No court has considered the ESA unconstitutional. http://www.esablawg.com/esalaw/ESBlawg.nsf/d6plinks/JDOZ-6L8KN2
The second constitutional question is whether specific actions based on the ESA require just compensation (i.e. payment) based on the takings clause. Here, courts consider whether an action has deprived a landowner of all or substantially all of the economic value of the property. Since landowners can usually obtain incidental take permits to authorize harm (or even death) of endangered species, the ESA rarely, (if ever) results in a constitutional, compensable taking.
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