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How to Have Environmental Protection and Jobs That Enable People to Eat, Too : Law: By declaring the gnatcatcher a "threatened" species, Babbitt opened the door to some land development under certain conditions.

April 11, 1993|William Fulton | William Fulton is the editor of the Ventura-based California Planning and Development Report and author of "Guide to California Planning" (Solano Press Books). He teaches in the Environmental Studies Program at UC Santa Barbara.

VENTURA — Bruce Babbitt's decision to declare the gnatcatcher as "threatened" shows just how much of a political minefield the Endangered Species Act has become. The four-inch songbird is important but aggres sively protecting it could shut down land development across a large swath of Southern California. As an environmentalist with impeccable credentials, he can't suggest tampering with the environmental movement's crown jewel--the Endangered Species Act. But as a Cabinet member working for a President whose top priority is economic recovery, the interior secretary must acknowledge that the political underpinnings of U.S. environmental policy have shifted.

Babbitt hopes to use the "threatened" designation to prove that the most inflexible environmental law in the country can serve both economic and environmental goals. In encouraging landowners to participate in the creation of a multi-species habitat in Southern California, he is trying to exploit what little wiggle room the act allows. Babbitt has to demonstrate that the old regulation regime can be adapted to changing circumstances. If he fails, the environmental movement and the Administration may be forced to play the environmental game by a new--and undesirable--set of rules.

Recent polls suggest that the average Californian's support for environmental protection is eroding in the face of hard times. What's really happening, though, is something far more subtle. We still want as much environmental protection as ever. But we're no longer willing to pay the high price of "command and control" regulatory structures, in which government agencies admonish, in minute detail, private businesses on what they can and cannot do.

What's emerging is a consensus for "least cost" environmental protection--getting the most protection possible with the minimum of economic disruption. The question is whether it will come through market-like trading systems or through negotiations similar to those involving the gnatcatcher.

Least-cost environmental planning has won mainstream support during the past few years, most notably in the air-quality field, where trading systems have been established to create "markets" in which the right to pollute is traded among polluters, private investors and even speculators. The South Coast Air Quality Management District's RECLAIM trading program is one example; so is the brand-new futures exchange for sulfur-dioxide emissions at the Chicago Board of Trade. The idea is that, given the right financial incentives, private companies will push to discover more efficient ways to reduce pollution, cutting the overall cost of environmental protection.

With wetlands and wildlife regulations constraining new development around the country, landowners and business interests are pushing similar trading ideas for land conservation. Federal law in wetlands and wildlife protection is especially rigid. Under the Clean Water Act, wetlands cannot be disturbed without a permit from the Army Corps of Engineers, even if the land is privately owned. Under the Endangered Species Act, private landowners cannot engage in any activity that will disrupt the habitat of a species on the endangered list without permission from the U.S. Fish and Wildlife Service.

Some biologists have been looking for ways to assign a value to wetlands and wildlife habitats. Such a ranking system would permit prioritization, "triage" of low-value land, and possibly lead to trading systems similar to those used in air pollution. Developers and the oil-and-gas industry are pushing to create a constituency for introducing these concepts into the Clean Water Act and the Endangered Species Act, both of which are up for reauthorization.

The problem is that we don't know how to value a piece of land as wetlands or habitat. Though many biologists are keen on the idea that "indicator" species can be used to track the overall health of most wildlife, there are millions of plant and animal species and we know little about most of them. Accordingly, environmentalists are not eager to amend federal law to permit ranking and trading of land based on its purported environmental value. They also fear that business interests will use such proposals as "cover" to gut wetlands and wildlife protection laws.

To combat this attack, Babbitt has pushed a method he successfully used while governor of Arizona: time-consuming negotiations involving all parties to a dispute that, hopefully, lead to consensus on the issue. In economic terms, Babbitt advocates a system in which the initial "transaction cost"--the negotiation--is extremely high, but businesses save money in the long run because they will have more certainty about what they can do.

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