VITTER: Endangered Species Act’s hidden costs

Respect for private property at risk

At least you have to give President Obama high marks for creativity in his latest attempt to curtail freedom and individual rights. Specifically, I’m talking about Mr. Obama’s assault on private property rights through the abuse of the Endangered Species Act.

I strongly support protecting endangered species. No one I know wants to see a species go anywhere near extinction. The far-left environmentalists in the Obama administration, however, have gone way beyond this by settling litigation with their allies in environmental groups behind closed doors. Through these secret settlements, they are advancing a much more radical, aggressive agenda than anything that is actually mandated by law.

This is a tactic called “sue-and-settle,” and it has become a central tool used to advance the radical environmental agenda. This is how it works: Far-left environmental groups sue the federal government — in this case, under the Endangered Species Act — claiming that the government is not satisfying its regulatory obligations. Then the groups and their friends in the administration draft a settlement agreement completely behind closed doors. No other stakeholder or representative of the public is provided the opportunity to shed light on how they might be impacted. The parties then get the judge to bless their agreement. That’s usually easy, since he doesn’t get to hear any opposing arguments and is often eager to get rid of what would otherwise be a complicated, time-consuming case.

In 2011, the Obama U.S. Fish and Wildlife Service did exactly this in concert with far-left environmental groups. That settlement teed up more than 250 species and their potential critical habitat for review and eventual onerous regulation. This future regulation could prohibit many beneficial uses of tens of millions of acres of private property. All this was set in motion while no affected landowner or other stakeholder was given any opportunity for input.

It’s like settling a commercial lawsuit for millions of dollars — only the party affected by the judgment is excluded from the entire process. He can’t present any evidence, make any argument to the judge or react to the proposed settlement in any way. The only ones involved are the person receiving the check, his family and friends.

The results of this grossly unfair system are what you might expect. Settlements go way beyond what is actually required by law. In the case of abuse of the Endangered Species Act, vast amounts of federal, state and private land are being partly or wholly taken out of commerce. This means well-paying jobs and other positive economic activity are lost.

As President Abraham Lincoln recognized, the right to own private property is both a personal constitutional right and a vitally important public good. “Property is the fruit of labor … property is desirable … a positive good in the world.”

Many private citizens and businesses create jobs and contribute to our economy using their land. Using closed-door deals to cut off private citizens’ ability to create jobs is both irresponsible and morally wrong.

The Endangered Species Act mandates the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration provide economic impact analyses when designating species’ critical habitat. Their latest regulatory move, done in concert with the “sue-and-settle” tactic described above, will end up hiding the true economic impact from the public.

The Obama administration’s proposed rule regarding these mandated economic impact analyses adopts a so-called “baseline approach.” This approach allows regulators to consider only the narrowest definition of the cost of designating the critical habitat compared to its broadest theoretical benefit.

In some instances, this baseline approach would actually mean that the government agency would only account for the cost to the agency itself, ignoring the far more significant costs to the landowners and other stakeholders involved. The only economic cost considered for listing a species would be the relatively trivial cost of a bureaucrat pushing paper around his agency to designate critical habitat. This is patently absurd and makes a mockery of what Congress clearly intended to achieve through a full and fair cost-benefit analysis.

To combat this abuse, I’ve organized 23 U.S. senators, who have contacted the Fish and Wildlife Service and National Oceanic and Atmospheric Administration and told them in no uncertain terms that we support a full and fair economic analysis. This would force regulators to be accountable to the public when making species and critical habitat designations.

Mr. Obama, not generally known for modesty, likes to compare himself to Lincoln. Maybe he should read up on Lincoln’s views on personal freedoms, including private property rights, as well as Lincoln’s commitment to openness and transparency. In both of those categories, Mr. Obama, has an awful lot to learn.

Sen. David Vitter, Louisiana Republican, is ranking member of the Senate Environment and Public Works Committee.