The act's authors embodied their ideals in a program that takes punitive measures against public land managers or private land owners whose land happens to be habitat for a threatened or endangered species. To avoid such punitive measures, the land owners and managers sometimes rush to destroy the habitat for diminishing species of wildlife before someone declares that species to be threatened or endangered, demonstrating that poorly written laws often accomplish exactly the opposite of what their authors intended.
The reasoning behind this law can be found in the writings of environmental philosophers, particularly Roderick Nash. Nash suggests that human ethics have evolved from the point where people considered themselves responsible only to members of their own tribe to the point where people treat all other humans with equality and respect. The next natural step, Nash suggests, is that people will grant nature rights that have been traditionally reserved only for other humans.
Until the ethics of all human beings have evolved to this point, however, it may be necessary for those who hold these new environmental ethics to forcibly or even violently force less ethical people to take care of, or at least do no harm to, other species. This is the logic behind the animal rights movement and it is the logic behind the Endangered Species Act.
Historians of the twentieth century will recognize this logic. It is the same used by Vladimir Lenin when he suggested that, as capitalism was based on selfishness, socialism would be based on selflessness. The next step in human social evolution, Lenin proposed, was the formation of a New Soviet Man, who would automatically work and make all decisions for the benefit of society rather than for his (or her) selfish needs.
Lenin recognized that New Soviet Men would not instantly appear. Until education and the benefits of socialism produced such people, the Bolsheviks would control society, making all decisions for the benefit of the people rather than for a few. The promise and goals of soviet society were so inspiring that they seemed to justify almost any sacrifice to reach them--including the deaths of millions of people.
Few supporters of the Endangered Species Act advocate mass killings to achieve the act's goals. But most agree that private landowners should be willing to give up their preferred uses of their land if the land contains habitat for a threatened or endangered species. The fact that few private landowners agree is only proof that such people have not yet achieved enlightenment and that more work is needed to overcome the forces of evil.
It may seem surprising, even outrageous, to suggest that an American Congress based an important law on a soviet model. But after all, most of the natural resource laws passed during the 1970s--and for many years before--were soviet in nature. What is the Resources Planning Act but a soviet-style central planning process, complete with targets, five-year plans, and an elite planning bureaucracy?
Between this and similar laws, Congress has come to manage our natural resources the same way the soviets managed their entire economy. The results have also been similar: Huge monetary losses producing surpluses of politically favored goods while creating severe shortages of others.
Officials and employees of the Forest Service were expected to be the first to evolve into the New Environmental People. Upon identification of an endangered species on the land they managed, they were expected to gladly stop whatever they were doing and take every available measure to protect the species.
Anyone familiar with the Soviet Union won't be surprised to learn that, after 70 years of managing the national forests, Forest Service officials had still not achieved enlightenment. When an Oregon State University graduate student named Eric Forsman told top Region 6 officials that they would have to stop cutting old growth to protect the spotted owl, they practically laughed him out of their offices.
Eventually, various Forest Service officials--prodded by environmental lawsuits that were more threatening than reductions in timber sales--did work to protect the northern spotted owl. Yet in other parts of the country, Forest Service managers still resist efforts to protect such species as the Mexican spotted owl, grizzly bear, goshawk, and redcockaded woodpecker.
It retrospect, it seems surprising that we would expect ethics alone could lead agency managers to risk their budgets, members of Congress to give up their pork, and private landowners to reduce their incomes in order to protect rare species. This is especially so when the biological circumstances that threaten a species are always debatable, giving those who feel threatened by protection measures to rationalize their opposition to such measures.
Economists call this kind of ethical dilemma a "moral hazard." I find myself questioning the ethics not of the people who face such hazards but of the people who write a law that will be hazardous to the morals of millions of people--especially when other alternatives are available.
Imagine that the authors of the interstate highway legislation had decided to use a soviet model similar to the Endangered Species Act. Their bill would have called for highway planners in Washington, DC, to draw lines on maps showing where the roads would go. Then it would decree that everyone whose land was crossed by one of those lines would have to build, at their own expense, a highway to federal standards and then let anyone use the highway.
If someone's house stood in the way of a highway, they would have to tear it down or move it at their own expense. Where the lines crossed public land, the public managers would be required to build the roads without any significant increases in their budgets for such construction.
Such a law would be perfectly rational from the Leninist viewpoint that people should act selflessly for the benefit of society. But it is hard to imagine that any significant number of highways would ever be built. It is much easier to imagine a revolt of landowners, lawsuits, even violence if the government persisted in forcing owners to build the roads.
Of course, the proponents of the Interstate Highway System didn't use a soviet model. Instead, their American plan assessed fees on highway users and dedicated those fees to a trust fund that would buy land and build roads. Landowners were fairly compensated for their land and disputes were minor. If anything, the result is too many highways.
Let's imagine rewriting the Endangered Species Act following this model. First, just as highway proponents fought subsidies to railroads, we have to eliminate any subsidies to activities that threaten diminishing species. Such subsidies are the biggest threats to rare species on both public and private land. They include everything from below-cost timber sales to animal damage control programs to import tariffs on sugar that encourage sugar production near the Everglades.
Second, just as highway departments were given the authority to buy land for road construction, we have to give endangered species advocates the authority to buy land--or the rights to use that land--for wildlife habitat. This is possible on private land, but not on public land.
On private land, but not on federal land, I can buy timber and not cut it down, pay for a grazing right and leave the grass for wildlife, or hold a mineral right but leave the minerals in the ground. The Forest Service and other public agencies should be allowed and even encouraged to sell easements to people who wish to protect resources rather than use them.
Third, we need to create a trust fund to protect biodiversity. Trust fund managers could use its monies to buy land, buy conservation easements, pay land owners or managers to use or avoid certain practices, or simply pay bounties to land owners or managers whose land is providing habitat for breeding pairs of rare or endangered species.
What user fees shall we dedicate to this trust fund? Since public lands form a significant component of biodiversity, I propose we dedicate 20 percent of all public land user fees to the biodiversity trust fund. In effect, people who "use up" the biodiversity on public land would pay into the fund protecting biodiversity on both public and private lands.
To make this truly effective, we need to increase all public land user fees to fair market value. Currently, such fees are strictly regulated by Congress to be well below market value. Of national forest user fees, for example, only the fees for timber and oil & gas (and a few other minerals) are set at or near market value.
The most important gains can be made by charging fair market value for recreation. The Forest Service says that the 330 million annual visitor days of national forest recreation has a market value of more than $6.6 billion--six times the receipts from all other uses combined. Even if this value--which averages $20 per visitor day--is overestimated, the potential receipts are clearly significant.
Of course, recreation wouldn't be sold by the day but in the form of annual or short-term permits. Such permits could be monitored at modest cost by requiring people to visibly display the permits on their car or their person. Many forms of recreation would be very cheap; others, such as hunting trophy animals, expensive.
At a modest average fee of $6 per visitor day, recreation income from all federal lands would total about $4.6 billion per year. Combined with other user fees, total public land receipts would exceed $8 billion per year. Supposing that 20 percent of these fees were dedicated to biodiversity, the trust fund would have income of $1.6 billion per year. Some may feel this isn't enough, but it is many times more than is available today or is likely to be available at any time in the future under the current system.
Designing the Endangered Species Act using an American model rather than a soviet model thus requires: