September 26, 2005

'No regulation without compensation'

Editorial: There are three or four changes we think are critical to an updated Endangered Species Act, starting with a strengthening of the science behind it.

Set your Hysterical Hyperbole Alarms on snooze: Within the next few weeks, the House Resource Committee is expected to begin work on reforming the 800-pound gorilla of environmental laws, the Endangered Species Act. The law, now 30 years old, is badly in need of updating, though it won't happen without a fight, given the leverage the act gives green extremists bent on trampling private-property rights, dictating land-use policies and obstructing energy development. Even talking about reform can open one to accusations of being indifferent to the wanton slaughter of eagles, whales, bunnies and butterflies. But in spite of such risks, a few intrepid politicians are stepping forward to rein in the rogue law. And they will need all the support they can get.

There are three or four changes we think are critical to an updated Endangered Species Act, starting with a strengthening of the science behind it. As people in Colorado learned the hard way, after the rodent formerly known as the Preble's meadow jumping mouse was exposed as a fraud, federal officials sometimes act to protect a species with only a vague idea about its true identity or status. About a third of the animals removed from the endangered species list over the years were on the list because of flawed science.

Given the law's incredible power to impact property values, dictate development trends, limit access to public lands and hamper the economy, Americans deserve assurances that the law's regulate-first, worry-about-the-science-later approach is reversed.

It's time to start compensating people when Endangered Species Act protections adversely impact their property values. Regulators and environmentalists hate this idea and are reluctant to relinquish their license to regulate at will, with little regard to how their actions are impacting people's lives. Paying compensation would not only be the fair and constitutional thing to do, since the Fifth Amendment requires that citizens be paid when government's actions deprive them of the full use of their property, but it would also underscore the fact that regulations come with a price tag, which someone must pay.

"No regulation without compensation!" must be the battle cry of a second American Revolution, aimed at curbing the power of politicians and government agencies to regulate without regard to the harm they are doing. This change of approach also would lead to better regulations. By making the impacts and costs explicit, Americans will have to put their tax dollars where their environmental values are. And that will make us all more selective about how the government regulates.

The current practice of designating "critical habitat" for every listed species also needs a second look. Even during the green-leaning Clinton administration, the U.S. Fish and Wildlife Service was saying such designations do too little to help species and too much to create a public backlash against the law. But greens love this part of the law because it hinges nicely with their real agenda - placing vast expanses of public and private lands off-limits to human use.

Changes also are needed to how U.S. Fish and Wildlife measures the economic impacts of species listings and critical habitat designations. Frequently, such economic impact estimates are laughably low and obviously flawed. No one takes them seriously. They've become engraved invitations to lawsuits. Such assessments should be standardized, strengthened and conducted by someone more objective than the agency doing the regulating.

Given that federal resources are limited, the Endangered Species Act must become more discriminating and focused in regard to which plants and animals merit federal protections. There's no practical or affordable way to protect every at-risk plant and animal, so hard choices will have to be made. This involves making trade-offs and value judgements. And that makes some people squirm.

But the alternative is a law that in trying to protect everything, from cave worms to grizzly bears, ends up protecting nothing quite well enough.