Property Rights Archives

courtesy Indur Goklany

In an article in today's New York Times titled, "In Niger, Trees and Crops Turn Back the Desert," Lydia Pollgren notes how property rights to trees growing on farmers' land have contributed to both economic growth, agricultural productivity and conservation in Niger at virtually no cost. She notes that :

In this dust-choked region, long seen as an increasingly barren wasteland decaying into desert, millions of trees are flourishing, thanks in part to poor farmers whose simple methods cost little or nothing at all...
[D]etailed satellite images and on-the-ground inventories of trees, have found that Niger, a place of persistent hunger and deprivation, has recently added millions of new trees and is now far greener than it was 30 years ago.
These gains, moreover, have come at a time when the population of Niger has exploded, confounding the conventional wisdom that population growth leads to the loss of trees and accelerates land degradation, scientists studying Niger say...
"The general picture of the Sahel is much less bleak than we tend to assume," said Chris P. Reij, a soil conservationist who has been working in the region for more than 30 years ... "Niger was for us an enormous surprise."

What contributed to the success? Apparently greater rainfall and property rights! As the article elaborates:

Terry Anderson and Laura Higgins have authored a new PERC paper on lessons for natural resource policies that can be learned from the "Old West." An excerpt from the introduction:

In the modern West, new entrepreneurial opportunities have emerged. Many of these reflect the growing demand for environmental products (sometimes called amenities) such as recreation and open space, in contrast to traditional commodities such as timber and minerals. Yet this desire for “unspoiled� nature has created acrimony and gridlock in the West. The institutional setting today is dominated by national politics rather than by individuals, community groups, and local governments as it was more than a century ago. Conflict is pervasive because one party's gain is another's loss. . . .

Yet the West has always prided itself on its independence and ingenuity. The message of this essay is that the New West must learn from the Old West. If we are to get the most from nature’s bounty—whether from traditional activities such as cattle ranching or modern ones such as recreational canoeing,or a combination of both—we must learn from institutions that encouraged resource stewardship and cooperation on the frontier. Finding a balance between cows and canoes in the midst of a stampede of people moving West to live in condos will be the key to long-term prosperity in the West.

The Supreme Court's Kelo decision provoked outrage in most ideological corners. Environmentalist groups were conspicuously absent from Kelo's critics, however. This was surprising, as the unconstrained use of eminent domain to promote economic development poses significant risks to environmental conservation, or so Ilya Somin and I argue in "The Green Costs of Kelo: Economic Development Takings and Environmental Protection. A draft of the paper is now available on SSRN here. The abstract is below.
UPDATE: Ilya's also blogged on our study at the Volokh Conspiracy here.

The National Center for Public Policy Research and Capital Research Center held a briefing on the Endangered Species Act on Capitol Hill today.

The National Center issued this press release afterward:

"Improve the ESA by Protecting Private Property Rights" Say Panelists at Capitol Hill Briefing on the Endangered Species Act

Washington, D.C. - At a standing room-only briefing on Capitol Hill today, several leading policy organizations advised that strong property rights protections should be included in any Endangered Species Act reform effort.

The lunch briefing was sponsored by The National Center for Public Policy Research and the Capital Research Center.

Pointing out that over 99 percent of the species listed as endangered or threatened under the ESA have failed to recover, and the devastation the Act has inflicted on private property owners, regional economies and public works projects, panelists at the event stressed that protecting property rights would not only bring relief to American landowners, but would also better protect species.

"While the Endangered Species Act has failed miserably at saving rare plants and animals, it has excelled in making life miserable for many in the human population," said Peyton Knight, director of environmental and regulatory affairs for the National Center, and a panelist.

"ESA-related costs are paid in an inequitable way," added Knight. "Although Congress determined in 1973 that the preservation of endangered species was in the interest of the U.S. as a whole, Congress did not arrange for the nation as a whole to bear the costs of recovery. Instead, these costs are largely borne by the private landowners on whose property rare species are found, regardless of the ability of any particular landowner to bear these costs."

Approximately 90 percent of all endangered or threatened species habitat is found on non-federally owned land.

The ESA's structure works against its success. The law pits species against landowners -- often the very owners of the land on which rare species live. This adversarial relationship works against the interests of both and often is referred to as the "perverse incentive" problem within the Act, because those who harbor endangered species on their property, or merely own land suitable as habitat for such species, can find themselves subject to crippling land use restrictions. To avoid such restrictions and the losses in property values that accompany them, some landowners choose to preemptively sterilize their land to keep rare species away.

"The ESA is bad for people and bad for species. Leading environmentalists, federal and state wildlife officials, and defenders of property rights have all agreed that the ESA is destructive of wildlife and habitat because its perverse incentives -- penalizing good private stewardship -- cause private landowners to be fearful of protecting endangered species," said panelist R.J. Smith, National Center Senior Fellow.

"There has been wide agreement on this for over a decade. Yet few in Congress have demonstrated the courage and statesmanship to cut through this Gordian Knot and reform the ESA so that it will actually protect endangered species by protecting landowners. It's time for a change," added Smith.

The panel, which, in addition to Peyton Knight and R.J. Smith from The National Center for Public Policy Research, included Terrence Scanlon and David Hogberg of the Capital Research Center and Myron Ebell of the Competitive Enterprise Institute, agreed that, at a minimum, the "perverse incentives" problem should be addressed. This can be done by fairly compensating property owners who lose the right to use their land due to restrictions under the Endangered Species Act.

"If the government takes a person's land to build a highway, the property owner is compensated," said Knight. "If the government takes the use of a person's land to protect a rare species, however, the property owner is not compensated. This inequity must be addressed."

Last year, the House of Representatives approved an Endangered Species Act reform bill that promises to provide such restitution to landowners. The Senate has yet to put forward any comparable measure.

The National Center for Public Policy Research is a non-partisan, non-profit educational foundation founded in 1982 and based in Washington, D.C.

The National Center for Public Policy Research and Capital Research Center are co-hosting a briefing on the Endangered Species Act in the Senate Russell Building Monday, March 27. It is open to the public.

The Endangered Species Act: Why Protecting Property Rights Is Good For Landowners And Species

Panelists include:

Terrence Scanlon
President, Capital Research Center
Introduction

David Hogberg
Executive Director, Greenwatch
Capital Research Center
Topic: Opening Remarks

Peyton Knight
Director, Environmental and Regulatory Affairs
The National Center for Public Policy Research
Topic: Perverse Incentives in the ESA

R. J. Smith
Senior Fellow
The National Center for Public Policy Research
Topic: Critical Habitat and ESA Victims

Myron Ebell
Director of Energy and Global Warming Policy
Competitive Enterprise Institute
Topic: House and Senate Approaches to ESA Reform

The National Center for Public Policy Research delivered a letter to members of the Senate Environment and Public Works Committee today regarding Senate efforts to reform the Endangered Species Act, which has managed to trample on the property rights of American landowners in the service of the present ESA's less than one percent species recovery success rate.

The National Center says these facts are not unrelated: The ESA's antiquated regulatory structure unnecessarily pits humankind against wildlife, which (predictably) harms wildlife.

People who fear losing the use of their land if a rare species is found there (under the current ESA, without compensation) have a financial incentive to make their land inhospitable to species.

The solution is grounded in the Fifth Amendment to the Constitution, which says: "...nor shall private property be taken for public use, without just compensation." The government should pay people fair market compensation for the land it takes. If it does so, people naturally will be less fearful of discovering rare species, or rare species habitat, on their property. (Recall that even the victims of the appalling Kelo decision retained the right to be paid for losses. Human victims of the ESA don't even get that much consideration.)

85 policy groups share our concern:

Protect Private Property Rights, 85 Groups Tell Senate, in Endangered Species Act Reform

Signatories Include Two Former Reagan Administration Cabinet Officials

Washington, D.C., Feb. 27 - Today, a letter signed by 85 major national and state policy organizations was delivered to Senators on the Environment and Public Works Committee. The letter warns Senators that any Endangered Species Act reform effort must include strong private property rights protections. The coalition letter was spearheaded by The National Center for Public Policy Research.

"Whatever action the Senate takes on ESA reform should reflect the national, bipartisan outcry for strong property rights protections," said David Ridenour, vice president of The National Center for Public Policy Research. "Quite simply, when the government takes your property, the least it can do is pay for it."

National policy organizations signing the letter include: Coalitions for America, the American Conservative Union, the National Taxpayers Union, Eagle Forum, the National Center for Policy Analysis, the Competitive Enterprise Institute, the National Legal and Policy Center, 60 Plus Association, the Property Rights Foundation of America, and the American Family Association, among many others.

The letter was also signed by the Honorable Edwin Meese III, who served as U.S. Attorney General under President Ronald Reagan, and the Honorable Don Hodel, who served as both U.S. Secretary of Interior and Secretary of Energy in the Reagan Administration. Former Senator Malcolm Wallop (R-WY) signed the letter as well.

State policy groups, including the Oklahoma Council of Public Affairs, Oregonians in Action, the James Madison Institute, the Illinois Policy Institute, and the Virginia Institute for Public Policy, among others, also signed the letter.

"Today, private landowners live in fear of the ESA. Those who harbor endangered species on their property or merely own land suitable for such species can find themselves subject to severe land use restrictions that can be financially devastating," said Ridenour. "This creates a perverse incentive for landowners to preemptively 'sterilize' their land to keep rare species away. Such sterilizations benefit no one - least of all the species the ESA was established to protect."

"Property owners should not be punished for being good environmental stewards, yet that is exactly what the ESA does," said Peyton Knight, director of environmental and regulatory affairs for The National Center.

In order to fix the ESA's perverse incentive problem, the letter says property owners who are denied the use of their land should be given 100 percent, fair market value compensation for losses. This would bring the ESA in line with the Fifth Amendment of the U.S. Constitution, which guarantees such compensation ("nor shall private property be taken for public use, without just compensation").

"Americans nationwide were outraged when, in Kelo v. City of New London, the Supreme Court ruled that government could evict property owners to financially benefit private interests," said Knight. "As terrible as eminent domain abuse is, at least the victims in eminent domain cases are compensated. Landowners who lose their property under the Endangered Species Act don't receive a dime."

Under the current ESA, landowners who apply to the Department of Interior for permission to use their property, are often forced to wait years for a response - years during which they often are unable to use the land they legally own, and on which they pay taxes.

The letter suggests that establishing a simple time limit within which the Department of Interior must issue final decisions to landowners' requests could prevent this injustice.

Meaningful ESA reform faces a big hurdle in the Senate, as the chairman of the subcommittee with jurisdiction over the Act is liberal Senator Lincoln Chafee (R-RI).

The National Center tried to schedule a meeting to discuss upcoming reform efforts with Senator Chafee's staff. However, the prospect of a meeting was immediately rebuffed by the Senator's staff after The National Center made it clear it wished to discuss the importance of protecting property rights in such a meeting.

"Allergy season is just around the corner and 'property rights' are apparently ragweed to the Chafee office," said Knight. "Unfortunately, this strangest of allergies hurts American property owners and endangered species more than it does the Senator and his staff."

The National Center for Public Policy Research is a non-partisan, non-profit educational foundation based in Washington, DC. Founded in 1982, it has promoted innovative, market-based solutions to environmental problems.

- 30 -

February 27, 2006

Senator James M. Inhofe
Chairman
Committee on Environment and Public Works
453 Russell Senate Office Building
Washington, D.C. 20510

Dear Senator Inhofe:

The U.S. Supreme Court's contentious decision in Kelo v. New London has brought the need to protect private property rights to the forefront of America's civic debate. Citizens from coast-to-coast recognize the vital importance of being secure in the ownership and use of their homes, small businesses and family farms.

As you and your colleagues consider proposed changes to the Endangered Species Act, we hope you do so with a clear understanding of the crucial role that secure property rights plays in saving threatened and endangered species.

As you know, the ESA has failed miserably in its stated purpose: Recovering threatened and endangered species. In the three-decade history of the Act, less than one percent of the species listed as either endangered or threatened have recovered.

Failure comes at a steep price under the ESA. Not only have species populations suffered, but the Act has cost billions of dollars and deprived landowners of the use of their land and, often, their savings.

The Endangered Species Act has failed not because it isn't strong enough, expansive enough, or funded enough, but because its incentives are wrong.

Today, private landowners live in fear of the ESA. Those who harbor endangered species on their property or merely own land suitable for such species can find themselves subject to severe land use restrictions. To avoid such restrictions and the losses in property values that accompany them, many decide to preemptively "sterilize" their land to keep rare species away. Such preemptive sterilizations benefit no one - least of all the species the ESA was established to protect.

By one estimate, up to 90% of all endangered species' habitat is found on private property. As such, punishing landowners for good stewardship can have extremely negative consequences for endangered and threatened species.

This perverse, anti-wildlife, incentive within the ESA would be all-but-eliminated if the ESA is brought in line with the Fifth Amendment of the U.S. Constitution, which states that private property should not be taken for public use without just compensation. Property owners who have their property taken or who are denied the productive use of it due to federal species recovery efforts deserve 100% of fair market value in compensation for losses. If property owners receive this compensation, and are secure in their belief that they can be good environmental stewards without risking (at-times ruinous) financial losses, species will benefit.

Also, as a matter of simple fairness, law-abiding American landowners should be able to learn, within a reasonable time, whether a proposed use of their property would run afoul of the Endangered Species Act. Under the current ESA, after landowners apply to the Department of Interior for permission to use their property, they can be forced to wait years for a response - years during which they often are unable to use land they legally own, and on which they pay taxes.

This injustice could be prevented by establishing a time limit within which the Department of Interior must issue final decisions.

Secure property rights are a fundamental cornerstone of our liberty and are integral to our nation's prosperity. Happily - if we as a nation would just recognize it - if we honor these fundamental rights in the ESA, endangered species will benefit.

So that it will work better for wildlife and people, the Endangered Species Act should be reformed to respect the Constitution. We urge you to keep this in mind as you begin your important work.

In September, the U.S. House of Representatives approved legislation to reform elements of the Endangered Species Act that pit landowners against species. The environmental movement lobbied hard against the bill.

Cross-posted at Amy Ridenour's National Center Blog

The October earthquake in Kashmir was a horrible catastrophe, not only killing thousands but also destroying much of the infrastructure in the rugged region. Relief efforts have focused on trying to help survivors through the harsh winter.

However, some refugees have refused to leave their destroyed homes for fear of losing legal claim to them. Farooq Kathwari, chairman of Refugees International reported

The winter is already there. They need shelter, especially for those who are still at higher altitudes. Lots of people who live in these mountainous regions don't want to give up their homes; that's the only thing they possess. And also they don't have the kind of deeds that we have over here, so they're concerned that if they leave, that possibly they may lose their home. So the challenge has been to take shelter to them.

Relief efforts are being strained further by the need to extend assistance beyond centralized refugee camps to those maintining claim to destroyed homes. You can read the rest of Kathwari's interview and more about the situation in Kashmir here from PBS.

The WSJ's Kim Strassel reports on the aftermath of a state court decision invalidating the regulatory takings compensation initiative in Oregon.

Courtesy of Jon Christensen’s blog, “The Uneasy Chair”, I came across a provocative piece, “Conservation Refugees: When Protecting Nature Means Kicking People Out”, by Mark Dowie in Orion. Dowie, while shedding light on some of the human toll of big conservation, confirms that colonialism is not dead – read Bob Nelson’s excellent historical account of the founding of some of the flagship nature preserves in Africa in “Environmental Colonialism: ‘Saving’ Africa from Africans”, here.

Dowie states that:

“It's no secret that millions of native peoples around the world have been pushed off their land to make room for big oil, big metal, big timber, and big agriculture. But few people realize that the same thing has happened for a much nobler cause: land and wildlife conservation. Today the list of culture-wrecking institutions put forth by tribal leaders on almost every continent includes not only Shell, Texaco, Freeport, and Bechtel, but also more surprising names like Conservation International (CI), The Nature Conservancy (TNC), the World Wildlife Fund (WWF), and the Wildlife Conservation Society (WCS). Even the more culturally sensitive World Conservation Union (IUCN) might get a mention.

“In early 2004 a United Nations meeting was convened in New York for the ninth year in a row to push for passage of a resolution protecting the territorial and human rights of indigenous peoples. The UN draft declaration states: 'Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option to return.' During the meeting an indigenous delegate who did not identify herself rose to state that while extractive industries were still a serious threat to their welfare and cultural integrity, their new and biggest enemy was 'conservation.’…

Julian Morris and I recently co-edited an edition of the interdisciplinary journal Energy and Environment, in which we commissioned a series of reviews of Collapse: How Societies Choose to Fail or Succeed by Jared Diamond. Several of these reviews have now been posted on the contributors' websites, see my extended entry for links to these papers.

One broad problem with the book is that Diamond distinctly fails to discuss how institutions such as property rights have enabled (and continue to enable) individuals to address the 'tragedy of the commons'. Another problem is that the facts simply do not support many of his claims.

The Measure 37 fiasco in Oregon is sure to fester for a while. An economist's take on the scenario is here. It might just be that "those granolas in Oregon" don't have a concatenated clue what they want.

An Oregon judge overturned the statewide referendum passed last November, Measure 37, which required that "state and local governments either compensate land owners when regulations lower property values or waive the rules." (Hat-tip to RedState.)

I recently re-read the Economist's take on markets and the environment, "Economic Man, Cleaner Planet." In the article, I'm quoted disparaging "market mechanisms" as "faux market environmetnalism." As I recall, the author of the article was particularly intrigued with a book review I wrote with that title, available here. There I argued that replacing command-and-control regulations with taxes and tradable quotas is not much of an advance. It takes more than economic incentives to create a market. What's required are 3-D property rights -- that is, property rights that are definable, defendable, and divestible.

biologists or economists? John Whitehead makes the case for economists here. To add my own two cents: In my experience economists have an additional edge because they have a greater understanding of the incentives that drive over-exploitation of fish stocks. But the greatest conservationists of all are the fishermen them selves if -- and this is a mighty big if -- they have property rights that tie their economic well-being to the health of the resource and reward their stewardship. And the stronger the property rights, the stronger the conservation incentives. In New Zealand, for example, it's not uncommon for the fishermen themselves to push for lower catch limits than government biologists would authorize (something that reinforces Whitehead's point). Also, as I've chronicled at length here, where such arrangements are allowed, fishermen have powerful incentives to organize so as to reduce harvesting pressures on the fishery upon which they depend.

The folks over at Gristmill have been pondering why conservationists have not been more active in the fight against poverty (see also here). One thread in the discussion focuses on the extent to which good institutions are necessary for both environmental protection and economic development. The relationship between good institutions -- in particular transferable property rights and the rule of law -- and economic growth is clear, but what about conservation?

Available research suggests that conservationists should be as concerned with basic economic institutions as anti-poverty activists. Research by economist Seth Norton, for instance, has shown that economic freedom and the rule of law greatly improve both the economic and environmental conditions associated with poverty in developing nations.

Dr. Seuss' story of the Lorax is an environmental classic (as is the television version that I've just seen). The conventional interpretation is that it's a tale of market-driven environmental ruin. The greedy Once-ler ignores the Lorax's warnings of environmental ruin as he turns truffula trees into thneeds (for a thneed, after all, is a thing that everyone needs!). As the truffula trees disappear the animals run off in fear, smog fills up the air yet the Once-ler doesn't care. Eventually the Once-ler cuts the last truffula down, and his entire corporate empire folds up and leaves town.

Environmentalists love to present this as a parable of modern industry's exploitation of the natural world. The relentless pursuit of profit leads to environmental -- and economic -- ruin. When the last truffula falls, so does the natural base for the Once-ler's wealth. And unless humans learn to care for the natural environment, and control industrial development, we will produce ecological devastation. But is this the best interpretation?

Is environmentalism becoming more hospitable to property rights? I think so. In a new draft paper, "Back to the Future of Conservation: Changing Perceptions of Property Rights and Environmental Protection," I try and make the case that the modern environmental movement was initially quite hostile to property rights, but has started to warm to property over time, largely due to practical realities. The abstract is below.

The National Center for Public Policy Research has a new press release out today examining House Resources Committee Chairman's "Threatened and Endangered Species Recovery Act of 2005," based on available drafts.

The Center for Biological Diversity says the proposal would gut the Endangered Species Act; property rights advocates are taking the opposite view -- looking askance, for instance, at a provision that would extend the ESA's reach into coverage of "invasive species."

The press release follows:

Pombo Proposal Wouldn't Gut the Endangered Species Act: It Could Give it Formidable New Teeth

Critics of Rep. Richard Pombo's Endangered Species Act reform initiative - critics such as the Center for Biological Diversity -- are simply wrong when they claim it would gut the Endangered Species Act, says The National Center for Public Policy Research.

"Richard Pombo's bill, if unchanged, could give the ESA alarming new powers," said David Ridenour, vice president of The National Center and a long-time activist on land issues.

Pombo's proposal is called "The Threatened and Endangered Species Recovery Act of 2005" and, until recently, was expected to sail quickly through the House Resources Committee. Rep. Pombo chairs the Committee.

"Property rights advocates are voicing concern about a provision that would extend the ESA's reach into so-called 'invasive species' -- never before regulated under the law," said Ridenour.

Under an Executive Order signed by President Clinton, invasive species are "any species, including seeds, eggs, spores, or other biological material capable of propagating that species, that is not native to that ecosystem."

"By this definition," says Ridenour, "almost any living thing could be considered an 'invasive species,' thereby giving federal bureaucrats broad new powers to regulate human activity -- where we live, what we plant in our yards, and where and how we vacation."

"Rep. Pombo may have been attempting to create a more narrow definition of invasive species," he said, "in an attempt to pre-empt more onerous regulations. If so, he should be applauded for his good intentions. But good intentions or not, such regulations could do more harm than good."

"Extending regulations to cover invasive species is a Pandora's Box that once opened may never be closed," Ridenour continued. "We won't need to wait for its ill-effects: Since equestrians, dirt bikers and ATV enthusiasts can carry seeds on or in their clothing, equipment and horses, these regulations can immediately be used as a pretext for kicking recreationists out of our national parks and other public lands."

The draft legislation also includes a compensation provision for property rights losses due to the ESA. But it would only kick in after a landowner loses 50 percent or more of the affected portion of his/her property value. Many small landowners can't afford a 25 percent loss of their farmlands, homes, ranches and investment property, much less 49.9 percent.

And even those who hit that magic 50 percent trigger may never see any money, as property owners would still be required to jump through costly and time-consuming bureaucratic hoops that can make it uneconomic to file a claim.

"The protections offered to private landowners are a lot like having the French on your side in war -- largely symbolic," said David Ridenour. "Chairman Pombo could have done better, especially in light of the growing public support for property right protections in the wake of the Supreme Court's Kelo v. City of New London decision."

The National Center identified other problems with the draft legislation, including:

* It would require property owners who are compensated for losses under the ESA to transfer title to their land to the federal government. This may permit the government to acquire land at bargain prices. It is not clear, for example, if government could gain 100 percent title by paying for a 50 percent loss.

* The proposal would exempt ESA advisory committees from the Federal Advisory Committee Act, which, among other things, requires public disclosure of advisory committee membership. Important decisions should not be made in secret by unaccountable and anonymous committees.

"I applaud Chairman Pombo for recognizing the importance of fixing the ESA, but I don't believe his bill will produce the results he hopes," said Ridenour. "You can't fix an already poisonous law by increasing its dosage. Unfortunately, I believe this is what some of the provisions of the bill would do."

The Endangered Species Act is already one of the most powerful statutes on the books. Critics say this is one of the main reasons it has failed so miserably.

Of the nearly 1,300 domestic species listed as either endangered or threatened since the ESA went into effect over 30 years ago, less than 1% of these species have recovered sufficiently to be delisted.

A similar number of species have gone extinct over that time.

Environmentalists claim that the 1 percent extinction rate is a sign of the ESA's success. This, they say, means the ESA has "saved" 99 percent of the protected species from extinction.

Critics call this position "delusional."

"The act of delisting species -- including those long since extinct and those that were never in danger in the first place -- is so politically-charged that it practically takes an Act of Congress to get a species off these lists," said Ridenour. "Continued listing of a species can be more of a statement on the power of the environmental movement than it is the true condition of a species. The only measure that counts is recovery."

Recovery of species, Ridenour says, is linked to strong property rights protections.

Close to 80 percent of all species listed as either endangered and threatened species have habitat on private lands. Thus, private landowners are critically important to the survival of these species.

Under the current ESA structure, because the discovery of such species on private land can result in severe land use restrictions that can lead to economic ruin, private landowners have strong financial incentives to make their land as inhospitable as possible to rare species.

"If landowners are punished for being good environmental stewards, we should not be surprised if many of them are not good stewards," said Ridenour. "Compensation to property owners for losses resulting from species conservation is an effective means of ending this perverse incentive system. Species would benefit; people would benefit."

The National Center for Public Policy Research is a non-partisan, non-profit educational foundation based in Washington, DC. Founded in 1982, it has promoted innovative, market-based solutions to environmental problems.

For more information, contact Ryan Balis at (202) 543-4110 or email him at rbalis@nationalcenter.org.

###

I've just discovered that Elizabeth Brubaker's Property Rights in the Defence of Nature is now available on-line here. Brubaker, who works for Canada's Environment Probe, makes a compelling case that property rights were, and can be, an effective means of environmental protection. Her book chronicles the history, and erosion, of property-based pollution protection in Canada. The U.S. experience was similar, albeit not identical. Nonetheless, there are many important lessons for property-based approach to environmental protection.

In a lecture on property rights and the environment, PERC's Holly Fretwell asks: "Ever change the oil in a rental car?" Of course the answer is no. Why treat the rental car differently than the one you own? Because owners face different incentives than renters. This is a good example that I'll probably use myself in future lectures.

Property rights advocates lost three cases in the last Supreme Court term. The problem is, in each of the three cases the Court reached the proper legal result as I explain in this NRO column. This is even true in the Kelo eminent domain case. I am no fan of eminent domain, but that does not make its use for economic development unconstitutional. The originalist case for a robust limitation on the purposes for which eminent domain is used is surprisingly weak, so the result in Kelo was probably correct. (And I know I'm going to catch hell from my libertarian friends for that one!)

Of somewhat related interest, I address the non-scandal of privately funded conferences for judges, including those sponsored by FREE, here.

The Supreme Court held, 5-4, in the case of Kelo v. New London that local governments can use the eminent domain power to take private property for the purpose of economic development. The opinions are here.

For backgroundon the Kelo case, see here.

The Supreme Court's recent decision to end the "substantially advances a legitimate state interest" takings test in Lingle v. Chevron is already making its way into the circuits. A takings claim rested among a host of other claims brought before the 9th Circuit by a game ranch. (For the Congressional Budget Office's explanation of what a takings is, see here, and how the courts evaluate takings claims, see here.)

The ranch was affected by Montana voter initiative I-143, which passed in November of 2000. The initiative outlawed fee hunting on existing game ranches and prevented the creation of future game ranches. (Game ranches entail the raising of "alternative livestock" usually elk, deer, or exotic game on fenced-in properties. This should not be confused with ranching for wildlife where landowners improve habitat in return for tags they can sell to hunters for pursuing wild game on their property. For more on ranching for wildlife, as opposed to game ranching, see here.) The 9th Circuit refused to hear a substantially affects theory of takings in light of Lingle and left a deprivation of all economic value theory of takings (which remains valid under current Supreme Court precedent) to be decided once the state courts have decided whether a takings has occurred under Montana law.

Around the environmental horn in other cases this week: