The Endangered Species Act and "takings": a call for innovation within the terms of the Act.

AuthorBabbitt, Bruce
PositionEndangered Species Act at Twenty-One: Issues of Reauthorization

I'd like to talk about the Endangered Species Act (ESA)(1) and the shape of the debate in advance of its reauthorization timetable. I have been up on Capitol Hill in the last several months pushing what I thought was a remarkably uncontroversial, uneventful, plain vanilla scientific institution called the National Biological Survey. The National Biological Survey would be the biological analog of the United States Geological Survey, and is a scientific innovation of great importance for the future of the country. When was the last time anybody heard of a controversy involving the United States Geological Survey? However, its biological counterpart was the center of political debate on Capitol Hill, and I found myself locked in a cross-fire with Congressman Hayes.(2) I knew these Congressmen from the South are canny and must see something in this institution that I did not, because they were busy loading it down, including an amendment prohibiting the use of volunteers on the National Biological Survey. I started thinking about it, and it quickly became clear. I called on Mr. Hayes and told him that he was a tricky, no-good devil: he was using my bill as the stage for a dress rehearsal debate on the reauthorization of the ESA. Mr. Hayes sort of smiled and said, "That is exactly what I am doing."

The ESA is undeniably the most innovative, wide-reaching, and successful environmental law which has been enacted in the last quarter century. In 1993, it is precisely twenty years old in its modem form. Case after case of resurgence and rebirth show that it has been remarkably successful: the American alligator has returned;(3) the skies are now once again graced by many bald eagles;(4) the peregrine falcon is now moving from near extinction to the threshold of delisting.(5) The exceptional stories include, not in the least, the forest plan that has now been worked out in the Cascade forest ecosystem in the Pacific Northwest.(6)

The opponents of the ESA understand those successes and those facts, so they attack it from a different direction. A collection of different groups has assembled, advocating a concept called the "takings" doctrine -- the notion that the ESA is really about unconstitutional, uncompensated talking of private property. A dry run of what that argument looks like is called H.R. 1388, the Just Compensation Act of 1993.(7) This simple bill would require any federal agent to compensate owners of private property "for any diminution in value" caused by any regulatory action taken under designated environmental laws. The bill lists such "talkings" and at the top of the list is the ESA. In effect, proponents of the bill are saying that when the government takes any regulatory action which causes any diminution in value of any kind of property, the public treasury must pay for that diminution under their proposed mechanism.

I was pondering that the other night, and came up with some examples of what the proponents of this bill are advocating. The first example is the Kesterson National Wildlife Refuge in California. A few years ago, the Kesterson Refuge, which is one of the great migratory bird stocks on the Pacific flyway, had a problem.(8) The waterfowl were dying; hatchlings were deformed at birth; and all sorts of strange things were happening. Ultimately, scientists found that selenium in irrigation tail water was draining into the wildlife refuge from an agricultural area and poisoning the waterfowl. The ESA and the Migratory Bird Treaty Act(9) mandated some regulatory action against what was happening at Kesterson. The federal regulatory action taken was simply the charge: "clean up the pollution or we will sue you." The Just Compensation Act would define, purely and simply, the regulatory action taken to stop the pollution as an undeniable diminution in value of a property right. It is going to cost those farmers money to stop the selenium flow into the national wildlife refuge. Under the terms of this bill, the agricultural operations would comply but would also bill the Secretary of the Interior for their cleanup actions. That is exactly what these folks have in mind when they are talking about "takings". The bill's proponents are saying, "We do not like environmental laws, and if they inconvenience us, we will send the government the bill and ask the public to pay." Rather than the old legal maxim "make the polluters pay," it would then pay to pollute because the government would reimburse polluters.

Those who have followed the Florida Everglades controversy can readily see another implication of this bill. Similar to the Kesterson Refuge situation, phosphate contaminated drainage water is causing eutrophication of the Everglades and a corresponding decline in the productivity of the fishery source, including the decline of the Everglade snail kite(10) and a variety of other endangered species. The regulatory action in the Everglades is a message to the sugar companies: "Stop. Clean it up." That message is being sent right now in the form of a legal action in the United States District Court.(11) If the Just Compensation Act passed, what would happen? Sugar growers could go into federal court and move to dismiss the lawsuit because they would not be required to pay anything. If sugar companies agreed to clean up the phosphate, the Interior Department would get the bill because the companies would have been inconvenienced by losing a little profit next year which, under the bill, is a diminution in property value.

I could give you a lot of other examples, but I will stop right there. You see my point. If the proponents of the Just Compensation Act get away with this kind of reversal of environmental policy, think about what happens afterwards. What will happen when cancer-causing pesticides are banned and chemical companies incur losses? The chemical companies will send the bill for losses to the government. When the...

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