January 2005 Archives

Sadly Diamond makes no distinction between decisions made in societies which are democratic, and societies which are run by tyrants; he praised Indonesia's military dictatorship because it established an extensive park system to protect its ecological resources.

While Diamond is a first-rate physiologist and geographer, his rhetoric is based on about conventional mythologies - the world is running out of oil and other resources, while we are consuming too much and the world's population continues to grow. Many people have disproven such mythologies - such as The Bottomless Well (a discussion of our energy supply).

And all the while Diamond lacks any coherent discussion or understanding of institutions that have evolved in societies to govern human behaviour and interactions - such as tort law, contracts and property rights. Many of the problems he discusses are in fact those which stem from the absence of such institutions - what we all refer to as the 'tragedy of the commons'. And while they are imperfect, these institutions both help societies to sort out clashes of cultural values in a peaceful and civilised manner, and lead to better decision-making about resources.

socialism all his life, he was shocked by the collapse of the Soviet Union. Yes, the Soviet Union had faltered economically in the late 1980s. "But collapse! No one expected collapse!" he wrote, and then he went on to elucidate why collapse had occurred.

But the same article had a chilling conclusion. Although Heilbroner considered socialism dead, he harbored hopes that it might live again. He suggested thinking of socialism as "the society that must emerge if humanity is to cope with the one transcendent challenge that faces it within a thinkable timespan. This is the ecological burden that economic growth is placing on the environment." He went on to cite the "epidemic rise" in skin cancer due to the "depletion of the ozone layer" (a claim dubious on at least two counts), and he recited other threats such as the "invisible panes of carbon dioxide and other gases" (he did have a way with words).

The result of this ecological burden would be "an utterly new condition of caution and constraint," he wrote. It might not be called socialism, and it might still have some trappings of capitalism, but the system would be "a great deal more cramping" than it is today. Given the extent of the ecological threat as he saw it, he seemed to welcome the idea. He admitted, however, that it was a "less agreeable undertaking than socialism as a design for the benefit of our grandchildren in the absence of such an overriding challenge."

Professor David Vladeck of Georgetown University Law Center, who formerly litigated Freedom of Information Act and regulatory policy issues for Public Citizen, opened claiming that the rise of “secrecy in government” will be one of the Bush Administration’s most important and enduring legacies. Vladeck suggested that he Bush White House seems to believe that “secrecy makes us safer” and, more significantly, this is arguably the first administration to argue openly that reducing openness in government is affirmatively desirable policy. For example, Attorney General John Ashcroft adopted a more aggressive stance toward litigating FOIA exemptions. Under Janet Reno, the Justice Department would only defend agencies that could demonstrate information clearly covered by a FOIA exemption and the agency could demonstrate that public disclosure would produce a demonstrable harm. Under the Bush Administration, however, the Justice Department will defend any plausible assertion of a FOIA exemption. The result, Vladeck argued, that information that would have been readily disclosed under prior administrations is now withheld as a matter of course – and these withholdings are vigorously defended in court.

Vladeck also noted that the Department of Homeland Security has also promulgated broad regulations to prevent the public release of critical infrastructure information. Another change has been a broadening of agency authority to classify documents. Today, for example, the Department of Agriculture and Environmental Protection Agency may classify information. Moreover, some information that is already in the public domain may be reclassified, despite prior disclosure. This is a significant change from the traditional treatment of only treating as classified that information that was “born classified,” and raises serious concerns because it is a crime to knowingly publish classified information. Similarly, the Nuclear Regulatory Commission, which cannot classify information, can prevent disclosure of information designated “safeguards information.” This “already troubling system,” Vladeck observed, has become worse with the NRC’s assertion that already public information may be so designated.

Another Bush Administration change was to announce in 2002 that the executive branch would only respond to information requests from committee chairs, effectively shutting off minority members of Congress (i.e. Democrats) from access to federal agency information. Under the Clinton Administration, Vladeck noted, the official policy was to respond to information requests from ranking members on congressional committees. [Comment: Many Congressional Republicans would argue that the Clinton Administration was less than forthcoming to information requests when Republicans were in the minority. Moreover, both the Interior Department and EPA withheld information from federal district courts in litigation. Thus, I would suggest that the impulse toward secrecy and withholding information is nonpartisan.]

Vladeck closed with a few comments on the Vice President’s Energy Task Force litigation. According to Vladeck, the federal government has gone to extraordinary lengths to avoid disclose the extent to which energy industry officials participated in, and perhaps even drafted, portions of the Administration’s energy policy. While Vladeck accepts that there could be an argument that the Clinton Administration was too inclined toward disclosure – albeit an argument that he does not accept – he thinks that, by any measure, the Administration has overcompensated with its efforts to increase government secrecy.

Christopher Schmitt, who authored the article “Keeping Secrets” in the December 22, 2003 issue of U.S. News & World Report, sought to provide concrete examples of how the Bush Administration has “dropped a shroud of secrecy” over government operations. Not all of the increased secrecy is a pure result of September 11, however. Rather, Schmitt argued, many of the recent policies to restrict information disclosure were proposed prior to September 11, although increased security concerns have facilitated the policy changes. Finally, Schmitt suggested that there is no dichotomy between information disclosure and security.

To illustrate the changes in policy, Schmitt noted that the Bush Administration eliminated the long-standing policy of erring on the side of information disclosure, and provided example of blacked out information in FOIA requests that raised no national security concerns whatsoever. Rather, some of the blacked out information consisted nothing more than embarrassing information. In another case, an agency withheld information about FOIA disclosure policy in response to a FOIA request. In isolation, many of the new refusals to disclose information are insignificant or amusing, Schmitt argued, but together they represent a troubling increase in government secrecy. With regard to facility risks, Schmitt expressed the view that a given facility “is either dangerous or it’s not,” and if it is dangerous the answer is not to prevent disclosure (or even to stop facilitating disclosure) but to eliminate the danger. [Comment: This is not a particularly nuanced or sophisticated view of environmental risk, and not particularly helpful in developing sensible policy.]

Providing a somewhat contrary view was Angela Logomasini, Director of Risk and Environmental Policy of the Competitive Enterprise Institute. Logomasini agreed that, as a general principle, information disclosure by government is a good thing and is essential for democracy. In the environmental context, however, Logomasini noted that the federal government requires the generation and disclosure of certain information about various facilities and environmental threats and that there are some categories of such information for which government should not mandate disclosure. “This is the one category in which we’ve gone too far,” she suggested.

Logomasini offered three principles for government information policy. First, it should ensure that information collected is meaningful, accurate and useful. Second, the government should be mindful of privacy interests in information that the government collects. Third, information disclosure policy should maximize the protection of public health and safety. These principles are particularly relevant where the government requires the generation, collection and disclosure of information that could pose a security risk.

Logomasini focused on Clean Air Act provisions that require the collection and disclosure of information about industrial facilities and worst-case scenario projections at such facilities, as is required under the Clean Air Act. Even before September 11, the FBI and the International Association of Fire Chiefs (IAFC) warned against mandating disclosure of such information on the internet as had been proposed. Congress enacted legislative reforms to limit such disclosure on the internet in 1999, but the EPA posted much of this information nonetheless in 2000. Although this information has since been removed from government sites on the internet, environmental groups such as Greenpeace had collected the information and posted it on private sites. Today, this information remains available in public reading rooms throughout the country, and the summaries of the individual facility reports remain on private databases accessible through the internet.

The IAFC maintains that such information is important and useful for first responders and local officials, but is not suitable for public disclosure on the internet. The risks of such disclosure, IAFC officials suggest, are greater than the public benefits. Logomasini argued that much of the information disclosed does not provide useful information about actual risks posed by facilities. The disclosure primarily serves to scare communities about local facilities and, at worse, increases risks by providing information to those who might seek to sabotage such facilities or otherwise engage in domestic terrorism. A better information policy would focus on the disclosure of truly useful information to first responders and local communities. [For those interested, I’ve also written on this subject here and here.]

General Comments:Much of the discussion conflated the increased classification of information, which effectively bars any public disclosure of such information, from changes in policies mandating information dissemination. There is a difference between opposing government policies that prevent – and perhaps even criminalize – the disclosure of certain information and government policies that foster or even mandate the uncontrolled and unmonitored dissemination of information that can be used to harm the public. It seems hard to quarrel with the idea that, all else equal, more information disclosure is better, but also that there is some information that should be tightly held, or at least not broadly disseminated. Unless policy weighs the risks of secrecy against the risks of disclosure, there is no hope of producing a sensible policy result.

Sax began his legal career at the University of Colorado teaching water law, mining law and oil & gas law in 1962, when these were all “private law” subjects – that is they concerned the property rights and contractual relationships of those involved with the relevant resources. That fall, Sax noted a lawsuit filed by the Sierra Club alleging that the government was failing to fulfill its legal obligation to protect the Rainbow Bridge National Monument from the effects of constructing the Glen Canyon dam. To Sax’s dismay, the case was readily dismissed. Individuals who utilized or exploited natural resources had little problem bringing legal claims against the government, Sax observed, but those seeking to protect natural resources had little access to the courts. Interested in this alleged standing disparity – and how individuals might use the law to advance environmental values – Sax set about collecting information on environmental cases for an early seminar.

In the mid-1960s, Sax got involved in a series of lawsuits against pesticide spraying encouraged by Rachel Carson’s Silent Spring. The first suit, prior to Sax’s involvement, challenged local spraying of DDT by local governments. The next, in which Sax participated, sought an injunction against the spraying of dieldrin in Michigan. Subsequent suits tried to limit spraying in Wisconsin and elsewhere. The suits were wholly unsuccessful, but they further engaged Sax in the field of environmental law. Also of note, some of those involved in the suits would go on to form the Environmental Defense Fund.

In 1969, while in Washington, D.C., Sax learned of a lawsuit challenging the construction of an apartment building along the banks of the Potomac River. The basis for the suit was the public trust doctrine. Here, Sax finally found a legal hook that he could use to advance conservation causes. The public trust doctrine is central to Sax’s conception of environmental law, as it places fundamental limits on the private use of certain “public” natural resources. Private property in such resources is, Sax’s view, essentially “qualified,” and does not include the right to eliminate or compromise the public’s interest. Sax’s subsequent article on the public trust is arguably one of the most influential environmental law articles ever written, and the public trust doctrine remains a powerful force in environmental law. (See my discussion of the public trust doctrine here.) More recently, Sax has applied the concept to cultural property, which, he maintains, is similarly infused with public trust values.

Sax also got involved in drafting an environmental statute for the state of Michigan to authorize environmental citizen suits and ensure standing in environmental litigation. As Sax recounts, the bill got passed, in part, due to union support, and the then-Governor’s wife assured him that “pillow talk” would ensure that the bill was signed into law. These provisions became the model for equivalent citizen suit provisions in federal environmental laws and set in motion the authorization of “private attorneys general” to advance environmental values in courts of law.

Sax’s influence on the law is remarkable, noted commentator Richard Lazarus of the Georgetown Law Center, because his greatest contributions have been as a scholar. He is a “rock star” in environmental law; “Not Mick Jagger, but perhaps John Lennon.” While always focused on improving environmental protection, his scholarship remained of the highest quality. Unlike many he did not let his advocacy compromise the quality or honesty of his scholarly work. When Sax wrote, people listened. His work has been cited by the Supreme Court nine times. More astounding, Lazarus noted, seven federal appellate courts and thirty state supreme courts have also cited his work.

Another notable element of Sax’s work, Lazarus noted, was his recognition that the comprehensive environmental protections he envisioned would have profound redistributive effects. Sax saw rigid standing requirements and prevailing attitudes toward private property rights as a substantial obstacle to environmental progress and sought ways to solve these problems. Moreover, he identified the need for judicial oversight to ensure that legislatures and executive agencies complied with environmental demands. Absent such oversight, Sax argued, these institutions would inexorably compromise away environmental protections and the interests of future generations. His scholarship did more than just identify these obstacles to environmental protection law. It also identified historical traditions that could be used to address these concerns.

But Sax did more than write. He participated in the meetings that led to the creation of the Environmental Law Institute, the launch of the Environmental Law Reporter, and the legislative proposal that would eventually become the National Environmental Policy Act (NEPA) in 1969. This helped launch what was, without a doubt, the “environmental decade,” in which most of the federal environmental architecture was put in place. The task for environmental law scholars today, Lazarus urged, is to safeguard the legal architecture that Sax’s work helped inspire.

Professor Rachel Godsil of Seton Hall University addressed the evolution of environmental justice as a parallel to the evolution of environmental law. In the 1980s, Godsil noted, it was first claimed that environmental pollution disproportionately burdens non-white communities. Specifically, the environmental justice claim is that environmental harms track race more closely than income or class. These claims sparked Godsil’s interest in environmental law, and led to her publication of one of the first articles on environmental justice – an article, interestingly enough, that argued there was insufficient legal basis to bring many environmental justice claims. In candor, Godsil noted she considered not publishing her article due its conclusions – and this is the peril of engaged scholarship. Yet whereas an advocate may have buried the research, Godsil went ahead with publication – as an engaged scholar (in the tradition of Joseph Sax) should. For a scholar, to be a scholar, must conduct honest research, irrespective of the conclusions.

My Comments: Sax’s influence on the law is undeniable. I do not believe that all such developments have been positive, particularly the elevation of the public trust doctrine and the erosion of private property rights. Yet Sax has been diligent and genuine in his endeavors. As Lazarus observed, Sax did not let his advocacy corrupt his scholarly work. I may disagree with his work, but it is honest and fair. Alas, the same cannot be said about much in the environmental field. Many environmental "scholars" are unable to write anything beyond thinly sourced, analytically shallow advocacy pieces. Moreover, the relative uniformity of thought within the environmental law field allows much of this work to go unchallenged.

I would also question the implicit assumption of much of the remarks that centralized governmental authority lies at the heart of environmental protection, and that creating and defending a large federal regulatory framework is the proper normative end of environmental scholarship. The AALS conference this year had a theme of "engaged scholarship" -- that is scholarship that is engaged in trying to affect the world around us and influence public policy. I am all for such scholarship, but it is narrow-minded to suggest that the only properly "engaged" scholarship is that which embraces a left-wing agenda. Alas, that seemed to be the implication of this and some of the other panels at the conference.

Much of the 'illegal' construction in Lajpat Nagar was built by poor slum dwellers and immigrants from other parts of India, at the time of India's independence. Some were given one-room houses with no bathrooms. Many of these people, through trade and entrepreneurship, became wealthier and as might be expected, built additions onto their dwellings -- but this was unacceptable to India's political elite (and perhaps some of south Delhi's wealthy upper class residents).

Middle class Indians became outraged at the demolition - and subsequently Lajpat Nagar was granted a Right of Way for development to continue.

Lajpat Nagar was a high profile case. Sadly, the DDA frequently invokes its power to demolish and relocate poor people in lower castes and poor immigrants, who have little say in the matter. Unless the residents pay excessive bribes to bureaucrats, city governments will often destroy 'slum settlements'.

Slum dwellers are prevented from owning any property because of onerous laws and regulations, and layers of bureaucracy. They end up building anyway - but ultimately do not possess title to their land, nor can they acquire it.

(here is an article about the politics of such demolitions)

This article discusses a scheme in Rio de Janeiro, Brazil, where favelas (slums) are transformed into real neighborhoods when people are given title to their land. Perhaps our friends in Thailand and other tsunami-affected countries could take a lesson from this - instead of perpetuating systems that only harm the poor.

The opening shots were fired by Professor John David Leshy of the University of California at Hastings. Leshy served as solicitor for the Interior Department under President Clinton. According to Leshy, environmentalists are beginning to wish Bush Interior Secretary was “James Watt in a skirt,” as they had charged at her confirmation, as Norton has been more aggressive and more effective, in many cases reversing long-standing federal policy. Leshy noted that the Administration has sought few legislative battles and not sought to reopen protected areas outside of the Arctic National Wildlife Refuge (ANWR), instead focusing on administrative initiatives and announcing policy changes on Friday afternoons. The Administration has also used “sloganeering” and spin to mask the nature of some policy changes. It’s been a “remarkable effort,” but “quite skillfully done.” This effort has been successful, in part, because the environmental movement has lost steam, and conservative think tanks are more aggressive. There was only one environmental question in the President debates, and Senator Kerry “blew that one.”

If there is a historical parallel to the Bush Administration, Leshy said it is the Gilded Age. The Administration has pursued a pro-industry agenda with few principled elements of free market environmentalism and federalism. It is not only hostile to the Clinton Administration’s environmental policies, but embodying a “hard right corporate” agenda. Despite conservative rhetoric, the Administration has placed serving corporate interests ahead of advancing conservative and free market principles. For instance, the Administration filed an amicus brief arguing that federal mining law preempts state and local land-use laws on private land. Similarly, the Interior Department has resisted efforts to allow environmental groups to purchase ranches and retire associated grazing permits.

As for Bush’s second term, “they have the wind at their backs” and strong legislative majorities. While many Presidents lose steam in the second term, Leshy noted that the Interior Department was far more aggressive – and successful – during Clinton’s second term. If – and this is a big if – the White House wants to devote political capital to cementing the policy changes of the past four years, they could accomplish quite a bit, but Leshy was skeptical this will be the case. Nonetheless, there will be a vote on whether to open ANWR, renewed debate on the energy bill, and more administrative changes are undoubtedly in the works. Tightening fiscal conditions will also affect new environmental initiatives. On the Congressional front, there will be efforts to reform the Endangered Species Act (ESA). The Administration’s view on ESA reform is unclear and, Leshy suggested, is not eager to engage the ESA due to concerns evangelical Christians might abandon ship (ark?) in such a fight. Leshy also suggested that some western states are beginning to shift to the left, and this could restrain aggressive new initiatives.

Professor Holly Doremus of the University of California at Davis next addressed the Administration’s alleged misuse of science. While some scientists have accused the Administration of “Lysenkoism,” Doremus suggested the Administration has “not gone that far, yet.” The Administration’s approach has been more subtle and, Doremus provocatively suggested, was essentially encouraged by the conservation movement’s historical approach to science questions. The conservation movement’s effort to suggest that environmental policy questions are, or should be, determined by science and science alone – effectively subsuming their policy preferences into scientific determinations – invited the Administration’s emphasis on uncertainty and the incompleteness of much scientific research. By subsuming the underlying values questions to scientific debate, conservation scientists may have increased their influence in policy debates, but they also created this opportunity. After all, if science – and science alone – is to determine policy, there is a reasonable argument that the government need not act where the science is uncertain or incomplete. Indeed, because science is nearly always incomplete – and because conservation policies inherently entail political judgments – the Administration can escape confronting environmental values by stressing uncertainty in policy decisions instead of contesting the underlying aims of the statutes and existing policies.

Due to statutory ambiguity, the Administration is able to use scientific uncertainty as the basis for inaction. One example Doremus cited is listings under the Endangered Species Act. Where the Clinton Administration averaged 66 species listed per year, only 28 species have been listed during the Administration’s first term – four of which are subspecies of the Channel Islands fox, three of which live exclusively on federal lands. [I am not sure that listing species under the ESA is the best way to save them, but it’s not as if the Administration has aggressively pursued alternative conservation approaches.] The Administration has also sought to adopt categorical exclusions to various analytical requirements, such as the environmental impact statement process mandated under the National Environmental Policy Act (NEPA), and sought to remove policy decisions from conservation agencies purview. For instance, portions of the Healthy Forests Initiative allow the U.S. Forest Service to take certain actions without Fish & Wildlife Service review.

Professor Doremus next suggested that more claims that scientific data objectively require conservation action will be insufficient to respond to the Bush Administration’s initiatives. If regulatory decision-making is to be more scientific, there needs to be a greater emphasis on process. For instance, Doremus urged a greater commitment to openness and transparency and greater efforts to force inherently political decisions into the open. The information base in many natural resource areas is incredibly thin, so there will almost always be room to argue from uncertainty if science is the basis for policy decisions. In response to a question, Professor Doremus suggested that the precautionary principle is no panacea. Whereas conservationists stress the need to take precautionary measures to protect environmental values, the administration can argue it is taking a “precautionary” approach to the adoption of new regulations that may hamper economic growth. Peer review has a role to play, Doremus suggested, but not the role to which the Administration has assigned it. While peer review can increase transparency, it can also be used to increase the costs regulatory actions and discourage regulatory action.

Stanford law professor Barton “Buzz” Thompson, who directs the Stanford Institute for the Environment, addressed conservative assessments of the Bush Administration’s policies. As he noted, groups like the Property & Environment Research Center (PERC) and the Cato Institute have been sharply critical of the Administration’s alleged failure to advance market principles. From the outside, it appears that Reason Public Policy Institute alum Lynn Scarlett has had relatively little influence.

Conservative thinking is not unified on environmental issues, Thompson noted, and can be divided into five camps: 1) Libertarians, who are skeptical of government action and highly supportive of property rights – and wish to protect property against government regulation and private pollution alike; 2) Pareto-Optimists who cherish efficiency, and therefore call for market-mechanisms and flexibility; 3) Jeffersonian conservatives who want to devolve environmental decision-making to the local level as much as possible; 4) Hamiltonian conservatives who are happy to wield national power to promote the economic engine of society, and who believe such policies are effective at driving economic growth; and 5) Burkean conservatives who stress continuity with the past and are reluctant to endorse radical policy change. Of these, Barton suggested, the first two are the most “pro-environmental,” whereas the last two are the most skeptical of environmental goals.

As caricatured by Thompson – his description – there are tensions among the five camps and potential splits on Administration policy. Libertarians and Pareto-optimists would endorse efforts to eliminate government subsidies that are both economically inefficient and environmentally destructive, and there has been no interest within the Bush Administration to move in this direction. Yet this approach could, perhaps, be defended by Hamiltonians who support government subsidies, and Burkeans who might care about the interests of those who have relied upon subsidies for years. Thompson suggested that various conservatives should support government policies to disclose – or require disclosure – of information on environmental matters (though did not identify which group might support such mandates on private firms). The Administration has resisted such policies, however, perhaps due to Hamiltonian impulses.

The Bush Administration’s stress on economic incentives in environmental policy should please Pareto-optimists, at least in part. The Administration has created various positive incentive programs to encourage conservation practices on private land. Yet these programs are so small that they are little more than “window dressing,” Thompson said. Moreover, the initiatives show “no sophistication” due to their failure to address potential opportunistic behavior induced by the new incentives. The Administration’s approach to the Conservation Reserve Program has undermined its conservation purposes while ensuring that incentive payments continue to participating farmers.

Thompson thinks the Administration deserves the highest grade in its effort to encourage greater use of market instruments. Examples include the Administration’s active endorsement of ITQs for fishing, effluent banking under the Clean Water Act and conservation banking under the ESA. The greatest inconsistency in Administration policy concerns questions of federalism. On the Jeffersonian front the Administration has also promoted “candidate conservation agreements” with states to encourage greater state and local involvement in species conservation, but the Administration has also supported preemption of aggressive state environmental laws.

In Q & A, Thompson suggested that at least some conservative environmental reforms are most likely to occur under a Democratic administration with a conservative Republican Congress, as such a Democratic administration will have to embrace conservative tools to advance environmental goals. Both Thompson and Leshy agreed that most environmental policy reforms occur at the administrative level and little of significance happens in Congress. The Clinton Administration resorted to the aggressive use of administrative initiatives because it faced a hostile Congress. The Bush Administration has done the same thing, but perhaps for a different reason Thompson suggested. Whereas the Clinton Administration didn’t go to Congress because it was afraid of what Congress might do, the Bush Administration doesn’t go to Congress because it doesn’t want publicity for what it is doing. Thompson also suggested that the lack of new federal initiatives has created a vacuum that it being filled by aggressive measures at the state and local level.

Best quote of the panel: John Leshy on NEPA: I’ve been in government along time and I grew to hate NEPA. That’s why we did national monuments because NEPA didn’t apply.”

General Commentary: The panelists are certainly no fans of the Bush Administration’s policies, but much of what they had to say is accurate. The Bush Administration has generally failed to advance conservative principles, perhaps because (in Thompson’s formulation) the Hamiltonians are ascendant. On the other hand, the Administration’s failure to continue to Clinton Administration’s agenda is hardly a fault.

I would also say that while I find Thompson’s formulation of types of conservatism useful for his analysis, the differences are not as stark as he might suggest. Most libertarians believe that unregulated markets are both more efficient and the greatest means of ensuring economic growth. Moreover, most thoughtful libertarians have profound respect for tradition, community and the other non-governmental elements of civil society celebrated by Burkeans, and encourage Jeffersonian devolution where more property-oriented reforms are not available. The real split, in my mind, is between the libertarian conservatives and, for lack of a better word, the Hamiltonians. Whereas the former believe the environment is best protected by property rights, and non-governmental institutions, the latter believes that centralized governmental power should be used for conservative ends.

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the ESA is broken because it ignores one other important reality: 80 percent of all listed or threatened species have all or part of their habitat on private land.

Under the current law, landowners are punished for cultivating, encouraging or allowing habitat that attracts or protects an endangered species. The ESA prohibits harm to an endangered species and the Fish and Wildlife Service interprets harm to include modifying habitat.

Thus, "A forest landowner harvesting timber, a farmer plowing new ground, or a developer clearing land for a shopping center (stands) in the same position as a poacher taking aim at a whooping crane,” according to Michael Bean of Environmental Defense.

Rational, normally law-abiding citizens, therefore, often engage in preemptive habitat destruction. If they expect an endangered species may come to their land, they destroy the habitat.

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by engaging property owners in the effort to protect species, we will also follow Leopold's claim that "Conservation will ultimately boil down to rewarding the private landowner who conserves the public interest.”

No claims about the value of biodiversity or moralizing about the diversity of life will change that basic fact.