Sabel, Fung, and Karkkainen have seen the future of environmental policy, and it is local control through consensus with added accountability. Many people would like this view of the future, especially those in the rural interior West. Local resource control is an old idea that Westerners have long advocated to the powers back east. Those who live here know the land, and have a vested interest in its care. And just as we are accountable to the land, we are accountable to each other, and to the nation. Working together to find common ground just makes common sense, which is why collaborative decision making flourishes. Collaboration groups now number in the hundreds, ranging from informal grassroots gatherings to government-mandated advisory councils.
This western vision is a driving force behind Enlibra, the Western Governors Association’s new doctrine for environmental management in the region. The governors want less remote control and more local control over resources. Enlibra outlines their push for strong local leadership to balance development and conservation goals, and resolve environmental conflicts. In fact, the first two principles of Enlibra are identical to the policy architecture promoted by Sabel, Fung, and Karkkainen.
The first Enlibra principle is "national standards, neighborhood solutions–assign responsibilities at the right level." Locals understand local conditions. Instead of offering unimaginative bureaucratic responses, the federal government should help local people and policymakers develop their own plans to achieve binding targets, and to provide accountability. The second principle is "collaboration, not polarization–use collaborative processes to break down barriers and find solutions." The Western governors believe that community-based collaboration can help produce creative solutions with political momentum. Togethern these principles support local leadership and collaborative efforts to help landowners and others enhance the environment and achieve economic productivity. Sound familiar?
The Western governors take this doctrine a few steps further. Enlibra does not hold fast to one tool as the means for effective and accountable local control of natural resources. Consensus works in some cases, but not in others. The program recognizes that a variety of tools in combination with collaboration can be used to improve environmental and community well-being. "Markets before mandates–pursue economic incentives whenever appropriate," is the relevant principal. In some cases, collaboration might be better organized with an auction block than at a bargaining table.
To illustrate, consider collaborative Habitat Conservation Plans (HCPs) designed to protect endangered species. Recall that an HCP acts as a safety valve for a private landowner whose property shelters an endangered species. A landowner with an approved HCP has a permit allowing the taking of endangered wildlife incidental to any otherwise lawful activity. The takings, however, cannot appreciably diminish the odds for survival and recovery of the species, and must be minimized and mitigated to the maximum extent practicable.
But at least three problems arise with the promotion of just consensus for HCP–the scope has changed with time, the process might be manipulated, and the process is seen as an invasion of privacy. First, back in 1982, people promoting HCPs had in mind a single landowner affecting a single species. Today people use HCPs to cover thousands of landowners and hundreds of species. Collaboration efforts are often fragile, slow, tedious processes. And most mediators will admit that adding more stakeholders will increase the costs and decrease the productivity of collaborative efforts. Second, many urban environmentalists fear that slick industry dandies will dominate the bargaining with local rubes. They fear that savvy, trained experts with unending financial resources will pressure local communities to water down the HCP. The common perception is that anything so attractive to corporations and developers must be flawed.
Third, many private landowners do not want to participate in a HCP collaborative process because they see it as inherently unfair. They consider the HCP process as an invasion of their privacy, a slap at their stewardship efforts, and an unfair restriction on their ability to protect their investment. These landowners won’t even enter into a discussion when the topic of an HCP process arises. Accepting the idea of a collaborative process for critical habit protection could be interpreted as meaning that they are not taking good care of the land already. The old adages that "no good deed goes unpunished" and "give an inch, take a mile" capture their mood.
But getting the cooperation of private landowners is vital to the preservation of endangered species. About half of the listed endangered species have eighty percent of their habitat on private land. The question is what tool besides an HCP might work to induce proactive measures to protect endangered species on private property. The scheme would need to respect landowner privacy, acknowledge their prior stewardship efforts, and allow some flexibility in how they protect their investments.
This big sticking item is compensation. Compensation for landowners has supporters and critics from both sides of the debate. Conservationists who support compensation see it as a practical way to buy cooperation; proponents among landowners argue that it is only fair to compensate property owners who are restricted in their ability to protect their investment. Conservationists who oppose compensation see it as a backdoor policy to sabotage the ESA through underfunding; averse landowners see compensation as a lever that will open the door for more federal control over their property, especially given the line of species being considered for listing.
A tool that might bring both sides together could be to create a market for critical habitat. Markets allow for both collaboration and privacy. While we might not be sitting across the table, a market exchange still implies a consensus. You want to buy habitat, I want to sell it. Landowners can be provided the opportunity to sell private shares of critical habitat rights on the open market without opening themselves up to public access. Sabel, Fung, and Karkkainen discount market-based solutions because they require too much information. This is a good point. But markets respect privacy, and can help overcome major constraints facing consensus.
After all, collaborative efforts face real constraints if explicit consensus is required. A shared feature of most models of consensus building is to even out power imbalances by "sharing information." But landowners who do not want to share information for whatever reason have little incentive to sit down and cooperate at the bargaining table. A market for critical habitat, on the other hand, would be similar to the real estate market. Private-sector bio-economic appraisers would assess the biological quality of the critical habitat rights offered up for sale. The appraiser would certify the habitat quality–four-star, three-star, etc. Sellers would then post their offer to sell a given habitat right for a given price, subject to private appraisal. Negotiating fair market value for habitat rights would require independent and confidential biological and economic appraisals of habitat. Duration of the contract would be negotiated. Inspections and non-performance could be standard rules or open for discussion. Most importantly, information not essential for the public enforcement of the transaction would remain confidential.
There will be challenges. Finding landowners willing to sell habitat rights would be a task. Deciding where and how money should be spent to get the biggest ecological bang for the buck will take energy. Conservation contracts will have to be well specified because property rights (especially water rights) are often complicated. And determining which acquisition option is best for the circumstances–lease, purchase, or donation–must be thought through. This is not a pie-in-the-sky idea. Environmental markets are used around the globe, and are being proposed for use in climate change as a cost-effective mechanism to get more environmental quality at lower cost. Such a market would complement or replace already existing programs that use bilateral negotiation, landowner by landowner.
Healthy local control in exchange for stricter accountability is a trade-off many Westerners might make. Suggesting that consensus is the only means to prevent hapless parochialism, however, might be asking too much. There is no universally preferred tool. Sometimes consensus works, but other times incentives work better. The search for Enlibra, East or West, requires that we use the best tool for the task at hand.
The United States is in the midst of a fundamental reorientation of its environmental regulation, one that is as improbable as it is unremarked.
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