Unbearable Legislation

The decision by the Secretary of the Interior to list the polar bear
as “threatened” removes all doubt that the Endangered Species Act is
broken and in need of urgent reform. It is the environmental movement
that must take responsibility for breaking it.

A sensible
discussion of the polar bear requires acknowledging a simple fact: that
the polar bear is merely a proxy for something else. The environmental
pressure groups like the Center for Biological Diversity that have
petitioned for the listing acknowledge that their reason for doing so
is concern over global warming. The more warming, they argue, the less
sea ice; the less sea ice, the fewer polar bears. So their hope was
that the Endangered Species Act will give the federal government power
to curtail sources of global warming—such as your car or air
conditioning system.

Secretary Kempthorne attempted to
frustrate this desire by erecting regulatory barriers, like a statement
from the Director of the US Geological
Survey that melting ice in specific areas could not be tied to specific
sources of carbon emissions. These barriers have all the legislative
strength of tissue paper. It will take but a few moments of a new
Administration to blow them away. After that, the first effects of the
now-sacrosanct listing will probably be felt not in Alaska, where
America’s polar bears range, but in any state thinking of adding a
coal-fired power plant to its energy infrastructure. The Act will be
used by the new government to intervene—and by activists to
litigate—against new construction in any controversial permitting
process. Once that precedent is set, the Act would be used to stop
uncontroversial, even popular permit applications. Electricity supplies
would be constrained. Blackouts and brownouts would proliferate. Were
you to buy a plug-in electric car a few years from now, you may well
find you have no electricity to power it.

America’s energy
infrastructure will be crippled, and for what? China is building two
coal-fired power plants a week and plans to build 97 airports in the
next 12 years. Even if the United States reduces its carbon emissions
to zero, global emissions are still likely to increase. If greenhouse
gases are truly causing problems for the polar bear, U.S. legislative
action will do nothing to protect it.

The polar bear is a
pawn in a bigger game, one that pits individuals who want to maximize
human welfare against those who regard humanity as blight on the
planet. At stake is technological progress itself. And this game will
do nothing to protect endangered species.

Here’s why: Only
since Western society has become wealthy enough have we been able to
attach value endangered species and moved to protect them. Prosperity
is good not only for us, but for the endangered species as well. Wolves
were reintroduced in the Northwest only after it became apparent that
concerned people would donate money to compensate ranchers for the
wildlife taken by the animals. The wood duck was saved from extinction
by hunters who wanted to keep hunting it. Elephants and rhinos in
Africa have thrived when private owners take responsibility for them.

as I explain in my book, The Really Inconvenient Truths, the
fundamental problem with the Endangered Species Act is that it strips
value from the species for precisely the same reason that listing the
polar bear would damage the nation. If a landowner discovers an
endangered species on his land, the last thing he wants to do is tell
the feds, since the subsequent restrictions on the use of his land
could ruin him. Thus, landowners routinely resort to killing endangered
species, disposing of the evidence, and keeping their lips sealed—a
practice known as “shoot, shovel and shut up.’

Levitt, author of Freakonomics, has recognized the Endangered Species
Act’s perverse incentives, which he analyzes as a case study in the law
of unintended consequences. (The Convention on International Trade in
Endangered Species, the Act’s international equivalent, has the same
perverse incentives.) And now it threatens to create another unintended
consequence: to enact nationwide carbon emissions restrictions through
the back door.

The Endangered Species Act is in dire need of
reform. It is a completely inappropriate vehicle for climate
legislation, and it is failing in its primary intention. A good first
step would be to grant people who find endangered species on their land
ownership rights over them; people would then have an incentive to
protect species they own.

Until we get such reforms,
however, the Bush administration should reject this attempt to restrict
Americans’ energy use. The effects of listing the polar bear will be so
wide-reaching that the polar bear might rapidly lose its place in the
hearts of the American people.