Wednesday, April 27, 2011
A Defense of Public Lands in the West
What follows is Eric Biber's great response to this post:
So there's at least three normative arguments I would make off the top of my head:
(1) Coordination of low-intensity uses. Our property system does a great job of allowing high-intensity single uses -- the paradigm is intensive agriculture or industrial use. But what if the "best" use of the land is multiple different uses that are all low-intensity conducted by a range of different users? In such a situation, common ownership or state ownership may make more sense. The best analogy I can think of here is how many Native American tribes used land ownership (see Changes in the Land). The coordination and transaction costs may not be feasible for individual landowners to conduct, instead of a communal or state ownership system. And many of the lands in the West are best suited for this kind of use.
(2) Related to (1) is environmental protection. There is arguably a great deal more potential to manage exploitative uses in a way that results in more environmental protection on communal/state land than on private land -- both because of law (think of the Takings Clause) and because of politics (people may think they have less of an entitlement on public lands compared to private lands). That allows us to better balance different uses and allow for "buffer" zones around key reserve areas (something that conservation biologists regularly call for). The legal argument here I think is pretty strong (only mining claims have property protection on public lands), the political argument seems weaker since exploitative users have been pretty successful in protecting their interests -- but not entirely! And of course, the question is always relative to how they do on private land, where they may be subject to much less regulation.
(3) The normative desirability of open access. For many people -- particularly people who have lived near public lands -- there is a strong benefit to having land that you can go to and use without asking anyone's permission. This is not just limited to hiking and ORVing and other recreational uses (which is what many of us urban folks are most familiar with today); think also about all the "mythology" about the miner with the burro and pickaxe who goes to prospect, or the cowboy who gets to go out and graze his cows, or (in the context of the oceans) the rugged fisherman who gets to make a living on the sea. Of course, many of these are today myths, relied upon by strong political/economic interests in ways that I think are problematic. But nonetheless, I think they do reflect a strong underlying preference that we have to be able to make our own way in the world without anyone telling us what to do -- and public lands help allow for that. Whether that is particular to a frontier culture like the US or is more generalizable I don't know.
Of course, you might still conclude that we have too much public lands, that half of what we have would be more enough to accomplish these goals. But I do believe that the fact that no one else would really want the land anyway strongly indicates that we probably don't. One of the reasons that the states don't want them is because they would lose lots of money on them, just like the feds do. As for whether you'd get private buyers for many of the lands, I'm skeptical. Or at least, you would get a buyer, but the value would be very low -- I don't think the revenue from the sale plus any additional benefit from improved management (which I would question, see points (1) and (2)) would offset the loss of open access.
Eric Biber
https://lawprofessors.typepad.com/property/2011/04/a-defense-of-public-lands.html
Comments
Really? All the Superfund sites on private land are just anomalies I guess... I'm always wary of statements that one form of ownership is necessarily better than another. That's why my statement wasn't a "paean" but instead said "arguably." And for your Hanford, I'll see you wilderness areas or National Parks or National Refuges, uses that are much more common on public land than private land. Maybe we should be skeptical of "paeans" to private land.
Posted by: Eric Biber | Apr 27, 2011 8:45:53 PM
http://projects.publicintegrity.org/superfund/report.aspx?aid=849
Even an admittedly incomplete EPA inventory of Superfund sites finds that the Federal Government is the PRP for the largest fraction of them, and (though this isn't perfectly obvious at that link) a large fraction of the "private" sites are actually quasi-government (typically defense contractor) sites.
I don't suggest that all National Parks are superfund sites-- not at all. But most USFS/BLM land is not "parkland" and is in no better shape than nearby private land.
Another complaint: rich folks like to preserve the viewsheds of their fancy houses by having the government acquire and "preserve" adjacent land. That is pure rent-seeking!
Posted by: Veracitor | Apr 28, 2011 8:03:27 AM
I should have expressed something more clearly. Since Biber claimed that government ownership was preferable because it would help prevent misuse/pollution (and I disagree), I don't think it's germane that National Parks are not Superfund sites. Biber didn't say we need more parks. He said the government should own most of the land in the West lest-- for one reason at least-- a private owner pollute it. As I pointed out, neither logic nor experience suggest that the government is better at averting pollution (or overgrazing, or whatever). National Parks are an unusual case and even they are not better preserved than private hunting ranches, for example.
Posted by: Veracitor | Apr 28, 2011 8:08:24 AM
(I hope you don't mind, Prof. Barros, but just one more comment...)
I really don't think we can say that government is a better environmental steward of NON-park lands just because it maintains some parks, and we should note that even National Parks can suffer from serious environmental mismanagement by government officials-- I should have recollected that I have Alston Chase's fascinating book "Playing God In Yellowstone: The Destruction of America's First National Park" in my bookshelf, and I could easily compile a long list of highly respectable references equally damning to the government's reputation.
As for whether private owners can maintain parks (not that I expect private owners to provide or maintain all parks-- that really is a different kettle of fish than BLM owning nearly the entire state of Nevada), note that the 52,000 acres of Mesa Verda National Park are in no better shape than the 33,000 acres of the nearby NRA Whittington Center; I've visited both.
reference:
http://www.amazon.com/Playing-God-Yellowstone-Destruction-Americas/dp/0156720361/ref=cm_lmf_tit_7
Posted by: Veracitor | Apr 28, 2011 11:15:03 AM
Some responses to Veracitor's many posts:
(1) Your statement was that private entities had a stronger incentive to take care of their land than public entities did and so would not only consider the "short-term" harm from their activities. So the fact that there are a substantial number of private entities who have Superfund liability -- and the many other sites that are covered by state hazardous waste statutes -- would seem to undermine your claim. The list you referenced is anyway a flawed measure for your argument: For instance, it only discusses “links” to a site, which could include (for instance) the fact that the federal government shipped waste to a private waste disposal company on private land, with the government only being a small contributor to the overall waste problem; this is a similar issue for the private contractors on the list. And I don't see why defense (or other) contractors would be "public entities." After all, they're private parties owning and managing private land -- shouldn't they have the same positive incentives to manage their lands well, regardless of who their client is? Moreover, the list you reference does not indicate whether the connection between the federal government and the contractor is related to the contamination caused by the contractor – IBM has lots of clients, and causes lots of waste unrelated to its government work. Are we to conclude that public entities manage their land poorly simply because contractors that work with the government are on this list? There may be no connection at all. I think you’ll need better evidence than this.
(2) Why is it "rent-seeking" for rich people to lobby for public acquisition of land to protect views? Isn't the viewshed at least partly a public good? Won't other people benefit from it as well? What, exactly, do you mean by "rent-seeking" or are you just throwing terms around to try and make your points for you? (“Rent-seeking” is a commonly used epithet to try and score points without actually articulating what rents are, who is seeking them, and what the normative problems are.)
(3) Your claim seems to be that USFS/BLM land is regularly (always?) managed less well than private land from an environmental perspective. That claim seems unsupportable. Wilderness areas are managed by USFS and BLM, as are a number of National Monuments. And there are many areas in which the USFS and BLM land is in "better" environmental condition than the public land -- think of National Forests in the East, or even public lands in the West, where the private land has been heavily developed for residential or commercial use, and it is the public land that is undeveloped. Or the many examples of public land that is the best form of habitat for remaining endangered species (e.g., black footed ferrets and prairie dogs in the plains). Yes, parks have their management issues, but are you going to claim that (for instance) the privately owned lands in south Florida (the lands that are tract homes, or sugar fields) are in "better" environmental condition than Everglades National Park? Isn't that what the comparison should be?
(4) One of the problems here is defining what we mean by “better” environmental condition. The assertion is that private hunting ranches are better managed than parks. By what measure? There are a lot of different ways to define environmental quality. Part of the problem (and the dispute between us) may be using different measures. It may also be very difficult to get good measures about what is “better” management.
(5) Much of the pollution and environmental damage that was caused on federal land in the past was the result of public decisions that other goals were more important than environmental protection at the time: producing nuclear weapons to win the Cold War; encouraging settlement and development of the West; promoting low-cost timber production and minerals production. Veracitor might assert that this shows that public management is more susceptible to special-interest pleading with short-term harm resulting in environmental damages. That may be, and there are good arguments to be made in that vein. But that argument assumes the answers to at least two questions: (1) Now that the goals of public land management have changed, will we see better environmental performance? That is something that will take a long time to figure out, both because agencies and societies and economies take a while to change, and because it will take a long time for the ecosystems to adjust and react to the new management. Veracitor may be a pessimist about this; I am less so. (2) What is the relative performance of public versus private systems in terms of providing environmental quality? And here, Veracitor seems to be overlooking the fact that private ownership necessarily will not take into account important, large-scale impacts from management decisions, i.e., externalities, without public regulation (or public enforcement of property rights that would be harmed by those externalities). For instance, downstream impacts on water quality; negative impacts on a species with a large geographic range from fragmentation of habitat by individual landowners; etc, etc. This will necessarily require a public response, and the question is whether that public response (regulation or enforcement of property rights) is superior to public resource management. That is not an easy question, and will depend on the economic, ecological, political, and social particulars of any one case. For instance, regulation can be just as susceptible to “rent-seeking” (as Veracitor puts it) as public land management. So can enforcement of property rights. (And note, for many resources private property is not even feasible!) To take the best example of that last point, if you believe that greenhouse gas emissions cause climate change, and that will result in sea level rise that will drown island nations, shouldn’t we be enforcing their “property rights” by enjoining emissions of greenhouse gasses? That seems unlikely, but that is a public, political choice that has to be made – it will not be made by the genius of the market, but instead based on lobbying (“rent-seeking”?). So the question that Veracitor has to answer is: Why do you automatically assume (and that seems to be the tone of your post) that public resource management systems will do worse?
(6) And that gets to my last point, and it reiterates what I made in the first point. There are circumstances where there is relatively little intensive, small-scale development activities occurring on land. In those situations, the costs and benefits of management decisions on large-scale resources (whether it is environmental quality or other resources) will be proportionately larger in terms of their impcat. Decisionmaking about those large-scale impacts will necessarily involve coordination across large scales (both time and space). Sure, individual preserves can do a great job of managing land for particular environmental goods or amenities, but in many circumstances if we’re going to achieve certain goals for those goods or amenities (e.g., protecting water quality in a large watershed, or protecting an endangered carnivore with a large range) then we’ll need to manage on a large scale. Public land management can allow for that, with all of its flaws; so can regulation of private land. But because you don’t have many of the political and legal constraints associated with regulating how private landowners use their land, you can have greater flexibility at this large scale than you might have at the small scale. And that is the benefit that I identified in point 2. That benefit might not outweigh the risk of failures in the management structure, but again, I see no reason to assume that is always the case.
(7) Implicit in Veracitor’s arguments is that someone would be willing to buy the land, even if we imposed regulation on that land to achieve the same form of environmental quality and open access that the public lands currently provide (or at least aspire to provide). The land was open for disposal for many decades, and no one took it. I don’t see any reason why that would change today.
With that, I have to get ready to teach my last class on Public Lands and Natural Resources.
Posted by: Eric Biber | Apr 28, 2011 1:42:16 PM
Biber writes that "..there are many areas in which the USFS and BLM land is in "better" environmental condition than the public land -- think of National Forests in the East, or even public lands in the West, where the private land has been heavily developed for residential or commercial use, and it is the public land that is undeveloped."
Biber then makes it pretty clear that his *definition* of "better" condition is "undeveloped." Biber's immediately-following discussion of "defining what we mean by 'better' environmental condition" doesn't exactly dispel that impression.
Look, if we are to define "better condition" as "undeveloped," then sure, government ownership is more likely to produce the desired absence of development.
But what has this got to do with preserving the "environment," unless-- as Biber implies-- we define "[proper] environment" as "environment without human presence?"
What are the limits to policy designed to achieve a national ecology from which humans and their works are absent?
Shall we set some date after which all new development shall be forbidden? Shall we contract urban boundaries year by year, dynamiting all structures outside of them, until some shining day when all of humanity is confined to a single great arcology (in which, perhaps, may be celebrated rituals of apology for the insult to Gaea implied by the footprint, however small, of the arcology itself)?
Biber offered various arguments why the "public" lands of the American West should not be sold into private hands. All are susceptible to some criticism or debate. I chose to pick on Biber's notion that government ownership will yield greater "environmental protection." I thought he was worried about pollution, overgrazing, and (as Biber himself suggested) various kinds of destructive externalities.
I pointed out, and despite hieing off after the question of parks, Biber hasn't really disputed, that government ownership of huge swathes of land does not mean better performance on overgrazing or pollution or whatever. I regard parks as a straw-man concern. I didn't say government parks were nastier than private ones, but to answer Biber's resort to "parks" as the key example of government ownership (and by implication, good stewardship), I pointed out that government parks are *not* less polluted than private ones, and aren't immune to mismanagement either. Both the private sector (whether NRA, Nature Conservancy, or others) and the government can maintain parks, and both mess up sometimes. The government messes up enough to falsify any suggestion that it always does best. (For what it's worth, I don't think Everglades N.P. is necessarily in "better" environmental condition than a nice tract of homes would be. Many Florida housing tracts may be run-down, but the National Park Service *itself* provides a long list of *serious* "environmental" problems in that park (many of which it blames on government agencies!): http://www.nps.gov/ever/parknews/currentissues.htm ).
I pointed out that the government frequently does worse than the private sector, and explained why. Biber claimed that the existence of "private" Superfund sites proves me wrong. Since the government is behind many Superfund sites, I think the question is still open. As for the "private" nature of defense contractors, I think Biber's wrong. Government contractors behave as government alter-egos. They aren't trying to please the market, they're trying to please bureaucrats who generally both instruct and indemnify them (yes, they really do indemnify them; want references?). I specifically wrote that one of the pressures on private parties to act in environmentally-friendly ways was fear of liability for violating environmental laws. For government contractors that fear is removed or attenuated.
However, I didn't realize (perhaps I didn't read his note closely enough-- looking again now I can see the shadow of the meaning that I missed) that Biber defined *all development* as environmental harm. Suburban homes = environmental harm. Industrial buildings = environmental harm. Schools and playgrounds = environmental harm. Roads, ponds, cell towers = environmental harm.
To many people, none of those things are necessarily "environmental harm." Why is it "environmental harm" if a human creates a pond by dropping brushwood into a creek, but not if a beaver does the same thing?
Now, I think we need to maintain a sense of proportion. Humans with bulldozers can "do a lot more damage" quickly than most other living creatures. I think it perfectly proper for us humans to regulate ourselves by law to avert all sorts of nastiness, from abandoned mine tailings on up-- but simply adjusting our own environment by development is not "nasty." (Note as well that humans change the landscape far less quickly and extensively than natural events like weather or tsunamis or volcanic eruptions!)
Biber wrote that keeping land in government ownership would obviate "Takings Clause" concerns. He's right, of course. The government can push around mere tenants or permittees much more easily, and cheaply-- for the government-- than it can landowners.
Since I think development is compatible with "environmental" concerns I think regulatory approaches are sufficient to achieve reasonable "environmental" goals.
Keeping land in government ownership discourages development for exactly the reason Biber alludes to-- without the protection of the Takings Clause (including, I would prefer, robust protection against uncompensated "regulatory" takings) no one will invest in development, because they don't want to risk losing their investments to political whims (or simple bribery of government officials).
Now that I understand that Biber *desires* that effect, I realize that we aren't really discussing whether government ownership mitigates the kind of environmental problems which concern people who want to use land and live on it. Instead, the question is whether government ownership mitigates the "environmental" concern that people will develop the land at all-- and that it certainly does.
Interestingly enough, Biber's idea of having the government own all the land, with everyone else merely a tenant or permittee has been tested. Our name for early versions of this system is "feudalism." The most extreme form of feudalism persisted into the 20th Century in Russia (it had begun to fade in England in 1215(!) with Magna Carta, which limited the Crown's power to arbitrarily disseise tenants) where the Tsar owned all the land and everyone else was a tenant or serf. Russian feudalism even persisted under the Soviet Union. I remember how enlightened I felt reading Richard Pipes, Sr.'s book "Property and Freedom" (http://www.amazon.com/Property-Freedom-Richard-Pipes/dp/0375704477), not for the concluding chapters (honestly) but because he explained, what I had never previously really grasped, that the Bolsheviks succeeded to control of, but hardly changed the Russian economic system. Yes, the Central Committee under the wise leadership of the General Secretary replaced the Tsar, but the Communists maintained almost entire the Russian system of land (non-)tenure. In a strong sense, Leninist Communism was a form of feudalism.
So what? Well we have seen how well the Russian Communists "protected the environment:" Just do a web search on "eastern european pollution" or "Aral Sea." America's "Superfund" problems are petty compared to similar problems in the former Eastern Bloc countries.
Western economic history, since even before the Industrial Revolution, testifies to the greater productivity *and greater "environmental" protection* of privately-held land. People without security of land-tenure commonly adopt a "grab and run mentality," eschewing long-term investments on land which might be snatched away at government whim. The hollow hope of better "environmental" management by the government is a bad reason to give up the social benefits of private ownership.
The question might be closer if government ownership really did protect land from "environmental" harm, but as we can see, it does not (unless you define all development as "harm").
As for whether private persons would wish to purchase government land, Biber may be right that no one would wish to buy land burdened with the "same form of environmental quality and open access that the public lands currently provide." No owner can develop land subject to comprehensive "open access" (although modest easements would be acceptable), and Biber's notions of "environmental quality" would preclude development by definition (or even if he just means that the government should be able to repossess the property without compensation anytime it claims to be acting on "environmental" concerns, that risk would prevent all but low-investment/low-value uses of property such as grazing).
On the other hand, we know for sure that people are willing to buy land burdened by the same environmental regulations which burden private land now, and if those are good enough for the privately-held land in America, they should be good enough for land transferred from government ownership to private hands. (The demand for "open access" is actually trivial. 99.9% of Americans never even attempt to traverse the vast government land-holdings in the West, except in automobiles on paved highways. They would suffer not at all if a portion of those lands were sold into private ownership and enclosed.)
The only way to find out whether people would like to buy government land now rather than "many decades ago," considering the US population has doubled since then and industrial productivity has increased many times over (while producing less pollution), is to offer land for sale. Hardly any argument could be weaker than "we can't sell government land now because no one bought it long ago." That was then, this is now.
Posted by: Veracitor | Apr 29, 2011 2:35:24 PM
I think we come to the real problem here. Veracitor's vision of "environmental protection" is lots of single family homes with pleasant yards and such. I don't think the only vision of environmental protection is no development at all, but it is certainly true that for many environmental amenities that we care about (clean water, abundant wildlife, open spaces, etc.) more development is worse than less. There are reams of scientific literature on this. In other words, in many cases any development is going to lead to pollution. Thus, the problem is that Veracitor has a paradigm in which development almost always = good regardless of the environmental impacts that would result. As long as there isn't some nasty smoke coming out of the property, that's okay. If that's the case, then you definitely want lots of private ownership, because you really don't care about reducing many of the externalities that exist from development. Of course there are environmental benefits to not having people live on certain lands -- that's the whole point of why we have parks and wilderness and reserves and, yes, public lands, where there is in general nobody living on those lands (with a few exceptions in some places).
One last point, and then I'll leave it to Veracitor to have the last word: you don't need to be a deep ecologist or a Gaiean to believe that development in many locations leads to environmental harm. You just have to have some basic knowledge of ecology, biology, and other scientific disciplines.
Posted by: Eric Biber | Apr 30, 2011 9:58:12 AM
One quick follow-up question to Veracitor, and then I'm done: Do you have any links or cites for the studies you said show that private land is better managed than public lands with respect to grazing? I'd be curious to see them. Thanks!
Posted by: Eric Biber | Apr 30, 2011 10:19:58 AM
I think Biber's #2 (environmental protection) is wishful thinking, contrary to economic theory (bureaucrats with no residual claim to the value of land are more likely to waste it than owners) and belied by nearly all experience, from the large differences in the condition of private and public (permit-controlled) range (grazing) lands in the American West to the shocking contrast between environmental/pollution problems on government reservations (Hanford, anyone?) and on private property. At least a private owner is deterred from many undesirable behaviors by the risks of destroying the value of his property or incurring legal liability for pollution, whereas a government bureaucrat risks neither-- so he considers only the rewards (including bribes) he may earn from short-term activities.
Very often I read paeans to government ownership or control which simply assume the saintly behavior of bureaucrats (and implicitly assume the diabolical behavior of private owners). Biber's #2 is in that vein. The USFS and BLM and other State and Federal land bureaucracies have no shining track record of conservation-- quite the opposite. To assume their future will not resemble their past is an unworthy basis for the formulation of public policy.
Posted by: Veracitor | Apr 27, 2011 3:26:42 PM