McBride/Montgomery Non-regulatory ESA 1AC Community Judge

Endangered Species Act 1AC (v3.3)

“Majestic bald eagles, powerful grizzly bears, stately gray wolves — these and other charismatic
species typically come to mind whenever the Endangered Species Act (ESA or the Act) is
discussed. Beneath this feel-good veneer, however, lies the troubling reality that the ESA has
been detrimental to the very species it is supposed to protect. The reason: The law's harsh
penalties induce landowners to rid their property of species and habitat. In short, because the
[Endangered Species Act] ESA is bad for people, it is bad for species.”1

End quote. Because we agree with this diagnosis from the National Center for Policy Analysis,
Conor and I believe the Endangered Species Act is in critical need of reform, and thus we stand
resolved: that the United States Federal Government should significantly reform its
environmental policy.

To start us off today, we’ll define some key terms in

Part 1: Definitions

All definition sources are available upon request.

Significant: having or likely to have influence or effect. Merriam-Webster Online Dictionary, 2009
[http://www.merriam-webster.com/dictionary/significant]

Reform: “To change to a better state, form, etc.; improve by alteration, substitution, abolition,
etc.” 2009 Random House Dictionary

Environmental Policy: the official rules or regulations concerning the environment adopted,
implemented, and enforced by some governmental agency. “Environmental Science: A Global
Concern”, 7th Edition authored by: William P. Cunningham, University of Minnesota, Mary Ann Cunningham,
Vassar College, and Barbara Woodworth Saigo, St. Cloud State University.

Endangered Species Act: a 1973 Act of Congress that mandated that endangered and threatened
species of fish, wildlife, and plants and their habitats be protected and restored. Washington
Department of Fish and Wildlife, [http://wdfw.wa.gov/fish/sasi/sasi_2002_glossary.htm]

Now let’s look at an important fact about the Endangered Species Act in

Part 2: Background

1
Brian Seasholes (expert on a wide variety of issues related to wildlife, land use and property rights, private
approaches to conservation in the United States and around the world, and the U.S. Endangered Species Act;
master's degree in geography from the University of Wisconsin-Madison) “Bad for Species, Bad for People: What’s
Wrong with the Endangered Species Act and How to Fix It,” National Center for Policy Analysis [The National
Center for Policy Analysis (NCPA) is a nonprofit, nonpartisan public policy research organization, established in
1983. The NCPA's goal is to develop and promote private alternatives to government regulation and control,
solving problems by relying on the strength of the competitive, entrepreneurial private sector.], 1 Sept 2007, [CpM]
[http://www.ncpa.org/pub/st303][brackets added for acronym clarification]

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The Endangered Species Act, or ESA, uses restrictions and penalties to control how the owners
of land that is inhabited by a protected species use their property. If you’re taking notes, you can
write down this first point as

1. ESA uses harsh restrictions

Jonathan Adler, an associate professor of law, observed in 2008 that quote,

“In the most basic terms, the ESA discourages the creation and maintenance of species habitat on private land by
penalizing it. Specifically, under Section 9 of the [Endangered Species] act, it is illegal for a private
landowner to engage in activities that could harm an endangered species, including habitat
modification, without first obtaining a federal permit. Knowing violations can lead to fines of up to
$25,000 and even jail time. Such regulations can reduce private land values and antagonize private landowners who
might otherwise cooperate with conservation efforts. This is because Section 9 turns endangered species
into economic liabilities. The discovery of an endangered species on private land imposes costs
but few, if any, benefits.”2

End quote. I’d like to now consider the impact of these harsh restrictions in

Part 3: Problems

First, it’s important to note that the penalties enforced by the ESA are immensely burdensome to
landowners. You can write this simply as

1. Hurt Landowners

In 2006, a letter to Senator James Inhofe, signed by 85 major national and state policy
organizations, recorded that quote,

“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.”3

End quote. Brian Seasholes, from the National Center for Policy Analysis, explains why
landowners live in fear. You can summarize his report simply as “Lost Property Value.” Quote,

2
Jonathan H. Adler [Associate Professor of Law and Director of the Center for Business Law & Regulation at the
Case Western Reserve University School of Law], “Perverse Incentives and the Endangered Species Act,” RFF
Weekly Policy Commentary [Resources for the Future improves environmental and natural resource policymaking
worldwide through objective social science research of the highest caliber.], 4 August 2008 [brackets added for
clarity] [http://www.rff.org/Publications/WPC/Pages/08_08_04_Adler_Endangered_Species.aspx][CpM]

3
Letter to Senator James Inhofe, signed by Senator Malcolm Wallop, David A. Ridenour [Vice President, National
Center for Public Policy Research], Hon. Edwin Meese, III [Former U.S. Attorney General], Hon. Don Hodel
[Former U.S. Sec. of Interior & Energy] and 85 major national and state policy organizations, February 27, 2006
[http://www.nationalcenter.org/ESAPropertyRights022706.pdf]

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“The Real Estate Center also surveyed 6,000 Texas real estate brokers in 1995, asking them to
estimate the effects of the ESA on a number of factors including real estate values. One of the most
noteworthy results was the estimated diminution in median property values for the Hill Country and the Piney
Woods region of Northeast Texas, home of the red-cockaded woodpecker. [See Table I.]
For the entire state of Texas, the survey found that the ESA reduced the value of farmland and
rangeland by 10 percent to 20 percent below what it otherwise would have been. The real estate
brokers also predicted the average decline in land values over the next five years due to the Act would range from
10.3 percent for urban land to 27 percent for rural land on the transitional edge of urban land.”4

End quote. We can see then that the ESA has extremely detrimental effects on landowners’
livelihoods. However, this is only half of the story. Not only is the ESA harmful to landowners,
but it is harmful to species, too. You can label this next point as

2. Hurt Species

The National Center for Policy Analysis explains, quote:

“The ESA has failed because it creates perverse incentives to destroy species and their habitat. More
than 75 percent of the listed species depend on private land for all or part of their habitat. Yet if people provide
suitable habitat for an endangered species their land becomes subject to severe regulation if not
confiscation. As a former Fish and Wildlife service official stated, "The incentives are wrong here. I have a rare
metal on my property, its value goes up. But if a rare bird occupies my land, its value disappears. We've got to turn
it around to make the landowner want the bird on his property." Property owners are faced with three
undesirable options: kill an endangered species member - or "shoot, shovel, and shut up" - destroy
habitat before a species sets up house, or lose the use and value of their land. Clinging to this
approach will condemn the very species we want to protect.
Paying landowners when their property is restricted, in contrast, would keep them from facing a choice between
their own welfare and that of the endangered species. “5

End quote. Jeffrey A Michael, who has a Ph.D. in economics, explained this in 2000, when he
said, quote,

“The popularity and vast regulatory power of the ESA are important statements of the value Americans place on
preventing the extinction of plants and animals, yet the law creates incentives for certain private
landowners to take actions that harm endangered species recovery. To avoid costly land use
regulations, landowners may engage in preemptive habitat destruction of currently unoccupied but
potential endangered species habitat, conceal or hinder the collection of information about

4
Brian Seasholes “Bad for Species, Bad for People: What’s Wrong with the Endangered Species Act and How to
Fix It,” National Center for Policy Analysis 1 Sept 2007, [CpM] [http://www.ncpa.org/pub/st303]
5
H. Sterling Burnett [Environmental Policy Analyst with the National Center for Policy Analysis. Bryon Allen was a
Kock Foundation intern with the NCPA. The NCPA is a non-partisan, non-profit research and education
organization based in Dallas, Texas.] “How to Fix the Failed Endangered [citation continued] Species Act,”
National Center for Policy Analysis, November 1, 1998 [http://www.ncpa.org/commentaries/how-to-fix-the-failed-
endangered-species-act][CpM]

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endangered species on their property, or even kill endangered species (commonly known as
“shoot, shovel, and shut-up”).”6

End quote. To summarize, the restrictions posed by the Endangered Species Act are hurting
innocent landowners, and are causing many of them to exterminate species in an attempt to keep
their land restriction free. Today, we propose a solution to this dilemma, in

Part 4: Plan

You can summarize our plan as Remove Restrictions on Private Property.

We propose the following mandate:

1. The ESA will be amended to exempt private landowners’ personal property from
federal restrictions on incidental species takings.

Our agency will be Congress and the President, enforcement will be through the Fish and
Wildlife Service, and our plan requires no special funding as it is purely legislative.

Alright, let’s finish today by looking at two benefits of our plan in

Part 5: Advantages

Our first advantage stems directly from our plan text. By repealing the regulations and penalties
in the Endangered Species Act, landowners will no longer face devalued property, and lost
savings. Thus, you can label our first advantage as

1. Landowners are benefited.

This is important, because as the Heritage Foundation observed back in 1999, quote

people are the most important

The first principle of NWI’s American Conservation Ethic is that
resource. The foremost measure of the quality of our environment is human health and
well-being. A policy cannot be good for the environment if it is bad for people. Human
intellect and knowledge are the only means by which the environment can be willfully improved.7
6
Jeffrey A Michael [Ph.D. in Economics from North Carolina State University; Jeffrey A. Michael is Director of the
Business Forecasting Center at the University of the Pacific Eberhardt School of Business. Michael’s areas of
expertise includes environmental and regional economics with a focus on the impacts of regulation and
environmental change on land use and property markets.], “The Endangered Species Act and Private Landowner
Incentives,” National Wildlife Research Center, Proceeding of the Third NWRC Special Symposium, August 2000,
[CpM] [http://www.aphis.usda.gov/wildlife_damage/nwrc/symposia/economics_symposium/michael.HR.pdf]

7
Becky Dunlop [Mrs. Dunlop is the Vice President of External Relations at The Heritage Foundation. Areas of
Expertise: Property Rights, Environmental Regulation, Federalism], “Effects of Environmental Policy on Private
Property Rights,” Speech before the National Hardwood Lumber Association, Published by the Heritage
Foundation [The Heritage Foundation is the nation’s most broadly supported public policy research institute], May
21, 1999, [http://www.heritage.org/press/environmental-policy.cfm] [CpM]

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End quote. But that’s not all! Under our plan, we also directly help the environment. Our second
advantage is

2. Protected Species.

In 2005, the National Center for Public Policy Research asserted, quote

For ESA reform to come close to working, both for species and for people, the perverse
incentives of the law must be eliminated. This can be achieved in a number of ways.
One way this might be achieved is by providing an economically viable means for landowners who lose
property rights under the ESA to receive full and fair compensation for their losses.
The draft TESRA legislation falls far short of this and, because it would expand the ESA to cover "invasive
species" and require landowners to transfer property titles to the federal government when compensated,
could further exacerbate problems.
Another possible reform would be to take away the federal government's blunt instrument of regulation in
favor of voluntary, time-sensitive leasing arrangements. This way, not only would landowners have the
incentive to preserve species, but the federal government's inventory of land - already to big for it to handle -
wouldn't grow. These leasing arrangements could be terminated, or not renewed, once a species has
recovered, or either the landowner or government determines they are no longer worthwhile. Yet another
alternative is to exempt private property entirely from the ESA. Eliminating the perverse
incentives - even without establishing a system of positive incentives - would do more for
rare species than the ESA has done in its 32 years on the books.
If all else fails, the ESA could be repealed. Although the political will likely doesn't currently exist for
repealing the law, it's clear that endangered and threatened species would be better off without the ESA. If
the ESA continues this abysmal performance - more species de-listed due to data error and extinction than
due to recovery - a popular consensus for repealing the Act may develop.8

End quote. In 2007, the NCPA noted that, quote

America's landowners are ready, willing and able to conserve endangered species. Sadly,
the main impediment to doing so is the Endangered Species Act.9

End quote. Today, by voting affirmative, you will be removing that impediment. By eliminating
the ESA’s strict penalties, you will most importantly be benefiting America’s citizens, and you
will also help protect imperiled species. I therefore urge an affirmative ballot, and I now stand
open for cross examination.

8
David A. Ridenour [Vice President of the National Center for Public Policy Research], “"TESRA" Endangered
Species Act Reform Proposal Would Do More Harm Than Good,” National Center for Public Policy Research [The
NCPPA is a communications and research foundation supportive of a strong national defense and dedicated to
providing free market solutions to today's public policy problems], August 2005
[http://www.nationalcenter.org/NPA531TESRA.html] [emphasis not in original][CpM]

9
Brian Seasholes “Bad for Species, Bad for People: What’s Wrong with the Endangered Species Act and How to
Fix It,” National Center for Policy Analysis 1 Sept 2007, [CpM] [http://www.ncpa.org/pub/st303]

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