Subscribe and listen LIVE every Sunday morning at 8am PACIFIC

Damien Schiff on the Endangered Species Act

Subscribe at BobZadek.com

When does environmental protection become regulatory overreach? As part of the “Great Reset” agenda to “Build Back Better,” Biden’s new America the Beautiful report outlines plans to conserve 30 percent of the nation’s lands and waters by 2030 — reversing many sensible reforms to the Endangered Species Act, for example, that have occurred over the last four years.

Remember the infamous Louisiana frog case? Federal agents in the Obama administration deprived a landowner of property by designating 1,500 acres of his land as “critical habitat” for the dusky gopher frog… a creature that hadn’t been seen in the Bayou State for more than 50 years. Thankfully, Pacific Legal Foundation successfully defended the landowner in a 9–0 Supreme Court victory.

Now, the federal government under Biden is overreaching once again — weaponizing environmentalism against property rights. The Endangered Species Act may have good intentions, but its implementation has caused untold harm to countless human beings, while distorting incentives for achieving actual conservation.

I was joined by Damien Schiff to discuss the Biden administration’s despotic approach to environmental regulation. Damien is a senior attorney at Pacific Legal Foundation. He leads its environmental practice group, a unique initiative that draws broadly from PLF’s expertise and success in property rights and separation of powers litigation. Over the years, Damien has represented hundreds of landowners and property rights advocates to defend their liberties against heavy-handed and unwarranted environmental and land-use regulation.

Find out how you can help in the fight against federal overreach on the show of ideas, not attitude.

TRANSCRIPT

Bob Zadek 00:17

This morning’s show we will address a very specific topic with a very specific statute in mind. During the course of our discussion, we will cover much of the core principles of the Declaration and of the Constitution. This show is about the Endangered Species Act. “Endangered” is a scary word — it means threatened, doomed to extinction. The Endangered Species Act is a statute that has been around for a while. Its goal was laudable. It should have been enacted one way or another.

What could possibly be wrong about a statute that just wants to protect species from extinction? There is a bit of finality about extinction, isn’t there? We want to encourage biodiversity. We don’t want to cause the loss of certain species that disappear forever from our planet. That seems to be a laudable goal. What can we possibly find to discuss about a statute that is trying to preserve species from extinction? What can we find to talk about? The answer is a whole whole lot. You will be astonished at how preserving species from extinction has profound effects upon all of us, upon the economy, upon property rights, and upon core constitutional principles. To help us understand all of this. I’m happy to welcome to the show, Damien Schiff.

Damien is a property rights hero to me. Damien is the Senior Attorney for the Pacific Legal Foundation, my favorite public interest law firm. He heads up its environmental practices group, and he has labored long and hard to both protect species from extinction and your property from extinction by the federal government. Damien has visited and has argued cases, or at least one case in the United States Supreme Court. He was successful. To share with us what PLF does, and why you care about the Endangered Species Act, I’m happy to welcome Damian to the show this morning. Damien, thank you so much for joining us this morning.

Damien Schiff 04:01

Bob, thank you very much for having me on.

Bob Zadek 04:03

Damien, let’s just t-up the issue. I fear that many of the listeners cannot recite the preamble of the Endangered Species Act from memory. I fear they have not learned it in high school or in college or in a master’s program, so let’s set the stage. What is the Endangered Species Act and what is its goal? Why has this statute garnered so much attention from the Pacific Legal Foundation, which exists to protect property rights?

Damien Schiff 04:52

Bob, your introduction really hit upon the main theme of the Endangered Species Act. It’s a statute that wants to preserve certain species from extinction, out of desire to maintain biodiversity, and a sense that if something goes extinct, it is permanent, so we might lose something important for mankind either through medical developments or just through pure aesthetics. I think it is important for your listeners to understand the origin of the statute, and then how over the course of time, it has been transformed through its administration. The modern day Endangered Species Act was enacted in 1973. There was virtually no opposition to it in Congress. President Nixon signed it with a very prominent signing statement. It was considered non-controversial because at the time, everyone thought that it was designed to protect those iconic species that really nobody wants to see go extinct, like the bald eagle or the grizzly bear, or the gray wolf. However, over the course of 50 years, the statute has become a powerful weapon. It was written so broadly, and because its limitations on private property use are so stringent, it has become a very powerful weapon for environmental protection groups and government bureaucrats who try to limit activities on private property.

The statute is used to not just protect things like the polar bear. It is also used to protect things like cave spiders, delta smelt, or pesky gopher frogs — species that obviously, the Congress in ’73 was not thinking about protecting, and certainly species which I think most Americans would imagine are essential for preservation, especially when placed against private property rights. The other part of the equation here is that we’re not just simply protecting species, we’re protecting them at a cost. The Endangered Species Act doesn’t just apply to animals and plants that are found on federal or state or local government land. It also applies fully to private property. If you have private property and you have an endangered species on it, you are very much limited in what you can do with your property, and if you should try to use your property productively anyway, without getting approval first from the Fish and Wildlife Service, then you expose yourself to significant civil and even criminal liability. It’s a liability that can be enforced not just by your local federal prosecutor, but by other private groups, citizen groups, environmental protection groups, who can bring their own lawsuits against you, and if they win they can also recover their attorney fees. This has created a dynamic whereby a statute, originally passed non-controversially, has become what prominent environmental law commentators have called the “pitfall of environmental law,” because once you transgress, it is hard to get out of its snare. It is a very potent statute, and it is used very strategically and powerfully by groups who are intent upon stopping a lot of productive activity on public and private lands.

Saving Endangered Species “At All Costs”

Bob Zadek 08:13

One of the points you made was that the statute was written quite broadly. We have complained on my show about the laziness and utter incompetence of the legislature in the drafting of legislation. Every law that is passed, almost by definition, is a new rule that further limits freedom. One would expect that every limitation on freedom be as narrow as possible, because the broader it is, the more freedom we lose. Damian said a word which will come back to us quite often, which is the “cost.”

The Endangered Species Act has an unusual approach to costs. Most legislation doesn’t protect people or people’s rights. Indeed, it compromises rights. Administrative agencies are very often reminded or compelled to consider the cost of regulation and their decision in regulation must produce a positive good. That is, the costs must be less than the benefits.

Now, the Endangered Species Act is one of the few statutes that specifically says it does not care about the costs. The species must be protected at all costs.

Am I correct that the Fish and Wildlife Service and other agencies that administer the Endangered Species Act are given carte blanche to ignore the costs of protecting the species?

Damien Schiff 12:22

I think you’re right. Most environmental laws take costs into account to some extent. At least they’ll say, well, we will moderate the manner and control of regulations based upon the technical feasibility and cost. The Endangered Species Act is unique. There is a famous line from the first Supreme Court decision interpreting the Endangered Species Act from 1978, a case called TVA vs. Hill, where the court said that the goal of the Endangered Species Act, and Congress’s intent, was to protect endangered species, whatever the cost. What is interesting is that language has become almost like a motto or slogan for advocates of the Endangered Species Act since then.

This goes back to your point earlier about how the legislature sometimes drafts too broadly, and it is important to underline here that the Congress did respond somewhat after that 1978 decision. Congress amended the Endangered Species Act to allow costs to be taken into account to some extent. Most prominently, you’ll find that in part of the statute that deals with what’s called “critical habitat.” This is the portion of the statute that protects the habitat on which endangered species are found or could be found. Congress amended the statute to allow the Fish and Wildlife Service not only to require the agency to take into account economic impact when issuing critical habitat designations, but also to give the government the power to exclude areas from critical habitat on the ground that the economic impact is just too high. Now, unfortunately, as oftentimes is the case when Congress tries to ameliorate something through legislation, the implementing administrative agencies tend not to do a very good job of it. Even though the statute for decades has authorized the government to take into account costs to some extent, the agencies and environmental groups, as well as the courts, have ignored that. More recently, a lot of litigation has occurred over the Endangered Species Act which is designed to try to address this issue, and this is why we have some amendments that take into account costs. We have in practice ignored that command.

How do we fix that? Your underlying point is absolutely correct, that the Endangered Species Act is written by and large in a cost-ignorant way. Meaning, you are to protect these endangered species whatever the cost. The part of the problem is that really no statute can honestly operate that way. Nobody’s really willing to say the species, regardless of the cost, but this rhetoric unfortunately has become so commonplace and unthinkingly accepted that it does result in particular injustices where substantial harm is done to private property rights for a very hard to quantify, or fabricated environmental protection goal.

The Dusky Gopher Case: An Example of Environmental Regulation Gone Crazy

Bob Zadek 15:41

What in your opinion is the poster child for what is wrong with the steps taken by Fish and Wildlife and other agencies in merely carrying out what they perceive to be their duty under the Endangered Species Act. The Endangered Species Act, as I teed up the issue, seems rather benign. Give us the best example of how there’s an ugly underbelly to enforcement of the Endangered Species Act, and why this has gotten so much attention from PLF.

Damien Schiff 16:35

I think the best example is the most recent US Supreme Court case addressing the Endangered Species Act, which we’ve alluded to a little bit already, and that’s a case called Weyerhaeuser versus US Fish and Wildlife concerning the dusky gopher frog.

Bob Zadek 16:50

My favorite. I was hoping you would pick that.

Damien Schiff 16:53

Yes, it is because it is so extreme. Our client’s family owned timberland in Louisiana for over a century. They operated as a tree farm for decades and decades. The Fish and Wildlife Service decided to designate their private property as critical habitat for the dusky gopher frog. Now, what made this decision by the federal government so outrageous, is that everybody acknowledged not only that the dusky gopher frog hadn’t been seen on the property for over 50 years, but moreover, because it was still an active tree farm, the dusky gopher frog could not survive on the property, even if it were to be planted there. Yet, the government was saying this was critical habitat essential for the conservation of the species. Moreover, even by the service’s own estimates, by designating our client’s property as “critical habitat,” the government was imposing an economic impact of up to over $30 million because of the increased federal regulation that would be triggered through the critical habitat designation. We, and other groups, challenged the government’s decision. The Supreme Court in 2018 ruled unanimously that the federal government was wrong in interpreting the Endangered Species Act to say that land can be considered critical habitat for protected species, even if it actually doesn’t serve as habitat for the species.

I think that’s a great example, because people can then see that this statute may be about a noble goal of preserving certain species. In fact, it’s being implemented in a punitive way to prevent the development of private property. I think the subtext here on why environmental groups cared about our client’s property is that it is a part of Louisiana that is quickly going through commercial and residential development. Those groups that don’t like to see new homes built, don’t like to see shopping centers built, and don’t like to see business parks built, use things like Endangered Species Act to prevent development. They would rather have areas remain undeveloped or underdeveloped than to see them fully developed. By getting this property designated as critical habitat, with all of the costs that go with it, it would make any other use of the property economically infeasible. Unfortunately, that is an aspect of the administration of the Endangered Species Act that I think Congress certainly in 73 was not anticipating. Now, it is obvious to everybody, but Congress is certainly not in any likelihood going to be amending the Endangered Species Act in a positive way anytime soon. To some extent we are stuck with it, but thankfully the courts, including the Supreme Court have started to notice that there is a problem here, and they are gradually addressing it case by case.

Bob Zadek 20:18

As I recall, that frog had another name. Its original name was the Mississippi gopher frog, because it was found in Mississippi. That wouldn’t have been very persuasive. You couldn’t complain and impose restrictions on land in Louisiana to protect the Mississippi gopher frog. So the first step was to change the name to the dusky gopher frog. Number two, let’s ignore the fact that frogs generally don’t take airplanes. There was no sensible way for a frog to get from Mississippi to set up a new home in the Louisiana forest. It just is a wonderful case to talk about because it’s one in a great line of victories for PLF. What happens is you take a statute with a laudable goal, and it imposes a $50 million or could have cost on a private landowner who just wants to go about continuing to harvest timber off timberland. One comment I’ll note. They farmed timber. Bear in mind that trees are a renewable crop. All these concepts about cutting down a tree and having Joyce Kilmer roll in her grave about it — don’t worry, Joyce, trees will grow back. Damien makes a point in passing that I want to just remind our audience about, trees are not being taken down never to return again. They are simply being harvested and replaced by more trees. Bear that in mind when you follow litigation trying to prevent the farming occupation of logging.

I drew the attention of our listeners to your use of the word “cost.” The reason I did that was that once we decide it is a very worthy goal to protect a species from extinction, it will involve a cost. Somebody who has land that is going to be deemed to be less productive. That is a cost to the landowner. Or if it is government land, then the government owns the land at a collective cost to us all. Once we acknowledge that there is a cost, the next really important question is who should pay for that cost?

Who Bears the Costs of the ESA?

Damien, I would like you to address a core property rights issue, because that is, after all, one of the reasons that PLF exists — to protect property rights. Tell us about how the Endangered Species Act is really nothing other than a very specific tax on very specific landowners in order for those landowners to give up value for the benefit of everybody. If I’m right, it seems to me quite unfair. If there’s a public benefit for all, then all of us should pay, not the landowner. Could you please speak to that issue?

Damien Schiff 24:45

The Endangered Species Act is a great example of legislation that purports to create a public good that everyone can enjoy, but the costs of producing that good are systematically and disproportionately placed on a specific individual, typically on rural landowners. The idea is, we have now preserved the dusky gopher frog, which is an amphibian that is found mainly in Mississippi, and they thought maybe Louisiana. What is the cost of protecting and trying to encourage the growth of the dusky gopher frog? Well, the cost is the limitation of private property rights to just a handful of landowners, including our clients. That is a little unjust, because why are individual landowners being singled out to produce this ostensibly public good. The best way to rectify that injustice is to compensate individual landowners who are required to forego using their land as they would otherwise prefer to in order to conform their conduct with the Endangered Species Act limitations, and then ostensibly to further the conservation of whatever species is an issue. That would be a really just outcome. Now, one reason why that is not done is because if we actually compensated people for the costs of Endangered Species Act regulation, people would then realize how expensive the Endangered Species Act is. Congress would try to amend it. As a legislator or as a government administrator, you are able to shift the cost of your regulation onto individuals, and not generally over society as a whole. Society then unfortunately develops the idea that they are getting these goods, such as conservation of habitat and the preservation of species, for no price whatsoever, because the costs of producing those goods are effectively hidden because they are disproportionately loaded up on individual landowners.

Now, in the late 1990s, there was an effort, and it’s been necessitated occasionally since then, to amend the Endangered Species Act to do precisely this. To authorize compensation at least for those instances where individual landowners are particularly burdened. Not surprisingly, that legislation has been defeated because those who support the Endangered Species Act from the environmental side, recognize the same thing that we do, which is that this is a very expensive legislation. If we actually have to start paying for the cost of it, the general public estimation of the Endangered Species Act as a great law will probably suffer quite a lot.

Now, there is another way of getting compensation, even if Congress doesn’t do anything, through mitigation under the Constitution and the Fifth Amendment, which says private property shall not be taken for public use without just compensation. There have over the years been a few efforts to use that constitutional provision to obtain just compensation for the limitation of private property rights. There hasn’t been much success, in part because of how the law has developed with the so-called “Takings Lawsuits” that require, before you can bring such a lawsuit, to first ask the government if you can get a permit to use your property, despite the contrary legislation. The reason why this has become an obstacle for bringing these types of cases is because it costs quite a lot just to apply for an Endangered Species Act permit. Those costs are not reimbursable, so to speak. In order to ripen your case for just compensation against the Endangered Species Act, you have to first put up quite a lot of money through the permitting process. Then, you have to find an attorney and litigate and all that. For that reason, among others, there have not been very many attempts, much less successful attempts to seek compensation under the Constitution. Moreover, the legislative attempts to authorize a statutory method for compensation have also been unsuccessful, again, primarily because those who support the Endangered Species Act don’t want the public to know how expensive that statute is.

Bob Zadek 29:37

Damien, thank you so much for that explanation because it highlights one of the core reasons I have felt it important to discuss an environmental statute on this show. It raises core constitutional issues. You mentioned so much in that brief explanation. You pointed out that environmentalists would really prefer to focus on the good part of it, preserving the species. Nobody can really object to that. If that becomes the debate, then those who might oppose it have to lose.

However, the legislatures are quite fond of giving benefits to their constituency. They want to do it without telling constituencies that we are giving you a benefit. The benefit comes at a cost. In other words, it is not a gift. You are selling something to the public, and the public is compelled to buy it with their own money. Legislators like gifts. They don’t like to make sales of public benefits. They like to give it away. Therefore, any way that legislators can find to disguise the cost and accentuate the benefits makes it an easy sell to the public. It’s free to preserve the Mississippi gopher frog. Kudos to the legislature who has done that, but not if there is a cost that all of us have to pay. We don’t get to vote on the cost. We only get to feel good about our legislators who have given us a benefit.

The Endangered Species Act in its enforcement simply buries the cost and taxes those random landowners, who, through bad luck, find themselves in a situation where some species happens to be really comfortable living on your land. Having discovered that, you’re doomed, because of the random selection of the species to your land, and you have to foot the bill. That just strikes me as being wrong. It is wrong under the first principles of our country, which is the sanctity of private property. If you want to simply support the Endangered Species Act in a way that is true to first principles, then you will simply say, as Damien has just said, that it is a laudable goal and we embrace it. We, the taxpayers of the country who are getting the benefit, have to foot the bill. We will decide if that is good legislation. Damien, thank you for that, because it shows how arbitrary and how unfair it is that some landowner discovers that some species may be comfortable living on their land. They are then hit with a very specific tax that only applies to them.

A Look at the “Takings” Clause of Fifth Amendment and Conservation Incentives

Also, you mentioned the takings. Just so the audience can follow, the Constitution prevents the federal government and then by the 14th amendment, the states as well, from taking property without giving “just compensation.” The issue is, if you can still own the property, they are not taking it from you, we are simply regulating what you can do with it. Is that regulation a taking? There the law gets murky. The question is whether the regulation has so much removed the value of the property to in effect constitute a taking, or whether the government has only limited the use of the land. I think the problem would go away if the takings litigation was more sympathetic to any taking, any material alteration in the value is a taking and requires compensation. Nobody could really quarrel with that. After all, we’re just compensating a private citizen for the action of the government to take away their property. Is it the fault line of how regulatory takings have been looked at in the courts?

Damien Schiff 35:08

This issue of regulatory takings is a top priority for PLF in our litigation and in our outreach. We are trying to get the courts to develop a doctrine that is more generous to the property owner. The way the law stands right now, if you are a property owner and you are told that you can’t use your property in this way or that, and as a consequence of that use limitation, the value of your property falls by 90%, almost all courts would say you have zero compensation. The case law has developed in such a way that unless you can show an almost total wipeout in value, it is very unlikely that you’ll get any compensation. This is really an unjust framework and I think it deserves attention by the Supreme Court. We hope to get the issue back up to the Supreme Court soon. If I could go back to one of the things about the Endangered Species Act and takings and compensation, we have talked a lot about how this is an unjust law in the property owners perspective, but I think it is also important to underline that even if you don’t care one whit for private property rights, and you simply care about the most effective regime for preserving endangered species, you should still agree with what we’ve been saying, because as soon as you tell landowners that you’re going to get no compensation for having endangered species on your property for maintaining habitat, what will happen is you will create a very strong disincentive for maintaining your property as habitat that is attractive to endangered species. This has been a dynamic that has been documented over the years in a lot of different contexts. As soon as a species is listed as an endangered species and its habitat requirements are promulgated, property owners, throughout the range of the species, do their best to eliminate those features on their property that might be attracted to the endangered species. This is legal. There’s no law against doing that. It is obviously strongly counterproductive to the preservation of the species. Yet, that is the problem that the Endangered Species Act has created. It has this desire to conserve the environment to conserve endangered species. All of its incentives are against it all. The incentives are against landowners doing anything to cooperate with the endangered species limitations and for the preservation of species. You would eliminate that disincentive entirely, if a landowner knew that even if he does end up finding that endangered gopher frog on his property, he will be okay because he knows that the government will compensate me justly for what I am now no longer able to do, because the species is in my property and because I’m not going to use my property in a way that will eliminate important habitat. By doing that, you will almost certainly more effectively encourage conservation than the current regime and by the same token, will also respect the private property rights of those landowners, who are singled out for the limitations on their private property rights because of the presence of endangered species.

Criminal Liability in the ESA: Environmental Tyranny?

Bob Zadek 38:38

There is a really ugly component of the law, and that is the use of criminal law as part of the enforcement. The reason I want to focus on that is because on many shows I have had guests and we have discussed the fact that criminal law has become distressingly useful to the legislature in motivating people to carry out government policies. The reason that is wrong is that when you make an act a crime that is in the normal course of living, it is not wrongful. It doesn’t strike us as being a bad act. It is not a harm to person or property. It’s not theft or fraud. It’s just doing something with your own land. You almost force law-abiding citizens to become criminals. What happens as a result of making otherwise lawful citizens into criminals, is that there becomes, in general, a lack of respect for the law, because the law seems irrational and unfair. There is nothing inherently wrong with the act. We declare it to be a crime, and we therefore take away somebody’s liberty for doing something with their property. Are there any examples that come to mind where the criminalizing of your own land use and your behavior towards threatened species has made criminals out of otherwise law-abiding citizens?

Damien Schiff 41:14

This issue has come up a lot, as you can imagine, throughout the act’s history. One example is in the southwest, where one has ranchers dealing with the depredations of their livestock from what appear to be coyotes, which are not protected under the Endangered Species Act. Ranchers will oftentimes try and use non-lethal methods, but sometimes they have to use lethal methods to to fight back against coyotes. Unfortunately, a coyote can oftentimes look very closely to an endangered Mexican gray wolf. The environmental community over the last several years has been trying very hard to get the courts to accept the idea that if you are a rancher, and you in good faith believe that your livestock is being attacked by a coyote and or some other unprotected animal, and you shoot the coyote or other animals and it turns out that despite your good faith belief, it actually was an endangered Mexican Wolf, that you are then criminally liable despite the fact that you had the right intention, and despite the fact that you might not have any reasonable opportunity to have known it otherwise than a coyote. Nevertheless, you’re criminally liable.

We go back to the theme of the show. This statute is written very broadly. It is true that there are criminal liabilities for the Endangered Species Act. They are by and large, strict liability, meaning that you don’t need to know that what you’re doing is illegal. You don’t need to know that there is some traditional moral harm that you’re creating. All you need to know is that you were consciously doing what you did. The legal consequences of that in the case that I just mentioned, is that whether it’s a coyote or a wolf, even if you made a good faith mistake, that’s no defense. Because the statute is so broad, there is this great risk.

Now, with criminal liability, unlike civil liability, it can’t be litigated by private parties. Even though an environmental group could sue you civilly for using your property in a way that they think violates the Endangered Species Act, they don’t have the authority to do that criminally. That is something that the US Attorney for the area decides. By and large, I will say that the Federal Justice Department and US attorneys have been judicious in their prosecutorial discretion, but they’ve been pushed and are being pushed by the environmental community to change that and to be more aggressive in the criminal enforcement part of the Endangered Species Act. As a consequence, there is a great risk that one will have even more injustices committed by people who believe that they are acting lawfully, but as it turns out, by an innocent mistake, they have violated the act and now find themselves criminally liable.

Solutions for Improving Just Outcomes in ESA litigation

Bob Zadek 44:37

Is society better off when the government puts a hypothetical rancher who accidentally killed a Mexican gray wolf in prison? I say absolutely, positively not. Freedom is to be valued too highly to cheapen it by putting that hypothetical rancher in jail. It is a gross misuse of criminal law. It’s the wrong tool to achieve conservation. I abhor the fact that liberty gets cheapened in that way. What would be your recommendations as to how a more competent and thoughtful legislature would protect this species in a way that’s consistent with our country’s first principles?

Damien Schiff 46:15

I think one thing is certainly to have costs taken into account. This is something that’s come up throughout our conversation this morning. We can leave it to the discretion of the legislature as to how to do that. We should take into account how expensive this is going to be, or whether we take costs into account at the back end, meaning we protect all species regardless of the cost, but then when we find that individuals are disproportionately burdened with protecting those species will compensate those individuals. I think that is certainly the first and most important point.

I think a second point is, more generally, to encourage landowner cooperation, not to interpret the act in a way that will disincentivize private property owners from using their property in a way that will help species conservation and preserve their habitats. To view landowners as potential partners, not as enemies. Lastly, with respect to criminal liability and other serious civil liability, to reserve that for only the really bad actors and not criminalize conduct that is in good faith trying to conform to the law, the example of the rancher.

If someone really believes that he or she is acting appropriately, and the act is not intrinsically wrong, but just simply something that the government has decided to regulate, let’s not regulate that. Let’s certainly not criminalize that. I think if you employ those three general approaches to reform, you’ll find not only that private property rights will be much more respected, I think you’ll also find that the goals of the Endangered Species Act will be even more effective for the endangered species and their habitat will be more effectively preserved precisely because when it has now respected private property rights and ensured that individual property owners are not unjustly targeted.

Dramatic Shifts in Presidencies: The Costs of Uncertainty

Bob Zadek 48:20

You have written persuasively, Damien, and passionately, about how dramatic the regulatory changes are from administration to administration, and how hard it is for businesses and the public at large to adjust. After all, we all benefit from predictability. We like to plan into the future. Our planning transcends one administration or another. If no one can plan beyond the remaining term of an existing administration, it imposes an uncertainty, which is simply a cost of being alive and conducting a business that we all have to bear. Please comment about how profound the change has been from Obama, Trump, Biden, and what’s the effect upon the business climate and upon citizens.

Damien Schiff 49:48

The regulatory pendulum swing back and forth is certainly not good for anybody, whether it’s a businessman or an employee or private property owner or even an environmental advocate. Uncertainty is never good. Particular with the Endangered Species Act, it’s really sad to see some good reforms that are now trying to be revoked. Towards the end of the Trump administration, the official Wildlife Service issued a number of new regulations that would have required economic costs to be taken more into account, and would also have given the government a little more discretion in deciding to what extent we want to fully regulate or only partially regulate. All of these things were designed to make the Endangered Species Act a little more respectful of private property rights.

Unfortunately, last month, the Biden administration announced its intent to withdraw those regulatory reforms. This is just the first step in the process. If the administration does follow through in revoking those, we’ll just go back to the way things were in the Obama administration and earlier, where we had what we frankly an unjust situation, where private property rights were ignored, endangered species were not being effectively conserved, and a lot of rancor was created between environmental advocates and property rights advocates. That’s not good for anybody. Let’s hope that the administration’s proposals don’t succeed. If they do succeed, perhaps they can be defeated by litigation. It is unfortunate to see the pendulum swing back dramatically in favor of government regulation and against private property rights.

Bob Zadek 51:27

I’m Bob Zadek. I’ve been speaking with Damien Schiff, who is an environmental hedge and the environmental practice group of PLF, a major property rights public interest law firm. Please follow the work of PLF and of Damien Schiff. If you have enjoyed this podcast or this live show, please let us know. All comments are welcome. Good and bad suggestions are always welcome. On your podcast, there is a way to indicate your pleasure with our show by checking the right number of stars and giving us your comments. Thanks so much for PLF. I mean that from the bottom of my heart, and thanks so much to Damien for sharing an hour of his wisdom and his thoughts and his work. Thank you so much, everybody. I’ll be back again next Sunday. Enjoy the rest of the weekend.

LINKS:

RELATED SHOWS:

--

--

http://bobzadek.com • host of The Bob Zadek Show on 860AM – The Answer.

Love podcasts or audiobooks? Learn on the go with our new app.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store