COMPLEMENTARY AUTHORITY AND THE ONE-WAY RATCHET: ECOSYSTEM SERVICES PROPERTY, REGULATION, AND WILDLIFE CONSERVATION.

Author:Robbins, Kalyani
Position:Symposium: Environmental Law Under Trump
 
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  1. INTRODUCTION 292 II. WILDLIFE FEDERALISM AND THE IMPACT OF REDUCED FEDERAL EFFORTS TO CONSERVE 292 A. Federal and State Biodiversity Protections. 292 B. Trump Policy and Potential Gaps. 295 III. ECOSYSTEM SERVICES PROPERTY 297 A. What Are Ecosystem Services? 297 B. Property Interests in Ecosystem Services. 302 IV. THE ONE-WAY CONSERVATION RATCHET 303 A. Property Rights as Authority over Biodiversity Impacts 303 B. Ecosystem Services Allocation Principles 305 C. Complementary Authority as One-Way Ratchet 309 D. The Inadequacy of Property Authority Makes State Regulation More Important than Ever 310 V. CONCLUSION 310 I. INTRODUCTION

    Typically when we talk about overlapping or complementary authority over resources we are speaking of federalism--the relationship between the federal government and state governments. This Essay considers a different, but equally important to its context of wildlife conservation, authority overlap: that between government regulation at any level on the one hand, and private authority on the other. When we consider sources of authority we often forget to take into account the power that property rights confer on private parties--power that can support conservation policy goals or serve as an obstacle to those goals.

    Drawing on the author's recently published theory of ecosystem services property, (1) this Essay demonstrates how this narrow subset of property rights can serve to complement regulatory efforts to protect biodiversity. Further, the concern for biodiversity conservation serves to bolster the importance of allocating the ecosystem services property to receiving landowners, as an allocation toward generating landowners (owners of the natural capital) could serve to undermine regulatory protections. If allocated as proposed, property rights in ecosystem services would be at best beneficial and at worst harmless to wildlife, thus combining with existing regulation in the form of a one-way ratchet in favor of conservation. However, while ecosystem services property might enable private parties to compensate in some ways for the conservation shortcomings of the Trump Administration, the actual choices private actors make are too unpredictable to serve as a substitute for regulation, so state regulation will remain critically important during this era.

  2. WILDLIFE FEDERALISM AND THE IMPACT OF REDUCED FEDERAL EFFORTS TO CONSERVE

    1. Federal and State Biodiversity Protections

      Both the federal government and the states have legislation protective of biodiversity, which can vary substantially as to both content and implementation priorities. These powers often overlap, as federal legislation does not preempt the entire field. All but a few states now have such statutes and list their own endangered species for protection, which demonstrates an evolution of state priorities and perhaps a response to the development of public trust doctrine in relation to wildlife. (2) It is worth noting, in relation to some of the points to come, that the federal Endangered Species Act (3) (ESA) was designed as it was in a world without state ESAs.

      We count on the Trump Administration to implement several important statutes for the protection of wildlife. First, the ESA, which was intended "to halt and reverse the trend toward species extinction, whatever the cost." (4) The ESA requires the listing of threatened and endangered species for protection, as well as the designation of their critical habitat, also to be protected. (5) It prohibits "take" of individual members of a listed species by any person, and requires all federal agencies to ensure that their actions (including permitting or funding private actions) neither jeopardize the continued existence of a listed species nor destroy or adversely modify its designated critical habitat. (6) Next, because the country must provide safe passage throughout its many bird migration pathways, the Migratory Bird Treaty Act of 1918 (7) is also quite valuable. It makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird without a permit, and imposes strict liability for violations. (8) Finally, enforcement of the Marine Mammal Protection Act of 1972 (9) expands on the benefits of the ESA by reaching species not listed there (all marine mammals are protected, regardless of their conservation status). (10) While these three statutes do not represent the full universe of U.S. wildlife legislation, they offer the greatest potential protections for biodiversity and serve as somewhat of a trifecta by expanding beyond the world of ESA-listed species for the critical categories of migratory birds and marine mammals. (11)

      While states initially asserted some proprietary interest in wildlife, and still do derive some power from their public trust duties, (12) the primary source of state power over wildlife comes from police powers to regulate for the health, safety, and welfare of the people of the state. (13) State regulation of wildlife largely falls within two broad categories: biodiversity protections similar to the federal ESA, and regulation of hunting and fishing for purposes of safety and sustained yield. (14) State ESAs, sometimes referred to as "mini ESAs," exist in all but two states (West Virginia and Wyoming lag behind in this regard). (15) Unfortunately, these state statutes are inadequate to the task of filling the federal ESA's role in the event of reduced federal regulation of endangered species. (16)

      State endangered species legislation varies widely in terms of both methodology and extent of coverage. (17) Many states protect wildlife but offer no protection for endangered plants. (18) Only eighteen states provide coverage for all species covered within their state by the federal ESA, leaving thirty-two states highly vulnerable to any cuts in federal implementation. (19) Even the eighteen states with species lists that fully overlap with the federal list lack the funding, enforcement, and even substantive protections provided by the federal ESA. (20) As noted above, the two main areas of federal ESA protection for listed species are the take prohibition and the requirement that all federal agencies consult with the wildlife agencies to avoid jeopardizing listed species. In contrast, only twelve states have any form of interagency consultation in their statutes, and only eight of those have meaningful provisions in this area. (21) Habitat destruction is the leading cause of species decline, and yet only five states restrict habitat modification on private land. (22) The upshot is that while states do have some biodiversity protections, they are nowhere near the point at which they could serve as a substitute for the federal ESA (and never will be). Of course, state programs become extremely important in the face of reduced enforcement at the federal level.

    2. Trump Policy and Potential Gaps

      The Trump Administration moved quickly to evade its duties in relation to biodiversity protection. Indeed, as of fourteen months in, the Center of Biological Diversity's "Trump lawsuit tracker" is up to sixty-four--that's just the number of times so far that this particular nongovernmental organization (NGO) has sued the Administration, not even counting other NGOs' wildlife-related lawsuits. (23) Over the course of his first year in office, Trump has opened public lands to coal leasing by reversing a moratorium on federal coal leasing; (24) approved the Keystone XL pipeline that the Obama Administration had halted; (25) proposed a border wall between the United States and Mexico that would fragment habitat and threaten vulnerable species; (26) repealed protections for wolves, bears, and other wildlife on Alaska's national wildlife refuges; (27) reversed a permanent ban on new offshore oil and gas drilling in the Arctic and Atlantic oceans; (28) gutted protections for both the Grand Staircase-Escalante National Monument and the Bears Ears National Monument; (29) planned construction of a road through the heart of Alaska's Izembek National Wildlife Refuge; (30) and permitted oil companies to dump unlimited amounts of waste fluid, including chemicals used in fracking, into the Gulf of Mexico. (31) This is just a sampling.

      Policy choices are always about trade-offs. We cannot have it all. Leaders determine their priorities and then sacrifice other goals to achieve them. The Trump Administration has made no effort to hide its interest in reviving the fossil fuel industry to its pre-climate-worry glory. The Administration sees the entire climate disruption issue as a massive hoax, (32) and has little concern for natural spaces (or Native American lands) that may be impacted by its support for oil and gas development. Just before the end of President Trump's first year in office, the United States Department of the Interior "rescind[ed] several climate change and conservation policies issued under the Obama administration, saying they were 'inconsistent' with President Trump's quest for energy independence." (33) Some of these changes were significant to biodiversity protection, including policies for avoiding activities impacting wildlife on federal land and mitigating the harms caused by climate change and invasive species. (34) Experts within the Obama Administration invested an enormous amount of time and effort to develop a comprehensive and scientifically up-to-date set of best practices for land management agencies to follow, and the new Administration is tossing it all in the wastebasket. (35)

      The legislature is also seeing a rise in anti-biodiversity proposals. There are presently five bills pending in Congress designed to significantly weaken the ESA (36)

      Most relevant to this Essay, of course, are the gaps in ESA enforcement that have begun to snowball in Trump's wildlife agencies. On October 5, 2017, the United States Fish & Wildlife Service...

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