The Endangered Species Act (ESA), enacted in 1973 with the aim of conserving and protecting species of flora and fauna threatened with extinction, is arguably the most powerful environmental law in the U.S. Code. It is also the most controversial. In over thirty-five years the act has recovered few species from the brink of extinction. Well over 1,200 species have been listed as threatened or endangered, but few have been restored to healthy status. Measured solely in terms of its environmental effects, few would call the ESA a "success."
The ESA's failures have not been due to a lack of enforceable provisions. The law imposes costly requirements on government agencies and private landowners to refrain from taking actions that could harm species and imposes extensive planning and consultation requirements on federal agencies. Today, the act is the source of extensive litigation in federal courts as environmental activists, regulated interests, and government agencies spar over its implementation, including its application to greenhouse gas emissions and other regulatory programs. The ESA's regulatory strictures cost more than money, however. Increasing empirical evidence shows that the law pits endangered species against private landowners, encourages preemptive habitat destruction, and penalizes environmental stewardship on private land.
At this one-day conference, leading environmental policy experts, academics, and legal scholars will discuss their proposals for new and innovative reforms that challenge conventional conservation strategies and seek to enhance economic efficiency and environmental conservation simultaneously.
|8:45 a.m.||Breakfast and Registration
|9:00||Introduction:||Henry Olsen, AEI|
|Jonathan H. Adler, Case Western Reserve University School of Law|
|9:05||Panel I: The Environmental and Economic Costs of Conservation|
|Presenters:||Jonathan H. Adler, Case Western Reserve University School of Law
|David Sunding, University of California, Berkeley
|Discussant:||William Snape, Center for Biological Diversity and Washington College of Law|
|Moderator:||Steven F. Hayward, AEI|
||Panel II: Property Rights and Conservation|
|Presenters:||James L. Huffman, Lewis & Clark Law School|
|Jonathan Remy Nash, Emory University School of Law|
|Jamison E. Colburn, Pennsylvania State University School of Law|
|Discussant:||Michael Bogert, Crowell & Moring LLP
||Jeffrey Bossert Clark, Kirkland and Ellis LLP|
|1:15||Panel III: Encouraging Conservation on Private Land|
|Presenters:||R. Neal Wilkins, Texas A&M Institute of Renewable Natural Resources
|David A. Dana, Northwestern University Law School|
|Discussant:||Lynn Scarlett, former deputy secretary of the Interior|
|Moderator:||David Schoenbrod, AEI|
|2:50||Panel IV: Climate Change and International Species Conservation|
|Presenters:||J. B. Ruhl, Florida State University College of Law|
|Brian F. Mannix, Buckland Mill Associates|
|Michael De Alessi, Reason Public Policy Institute|
|Discussant:||Rafe Petersen, Holland & Knight LLP
|Moderator:||Kenneth P. Green, AEI|
Jonathan H. Adler is a professor of law and director of the Center for Business Law & Regulation at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative, and constitutional law. A 2007 study found he was the most cited legal academic in environmental law under age 40. Mr. Adler is the author or editor of three books on environmental policy and several book chapters. His articles have appeared in publications ranging from the Harvard Environmental Law Review and Supreme Court Economic Review to The Wall Street Journal and The Washington Post. Mr. Adler is a contributing editor to National Review Online and a regular contributor to the popular legal blog, The Volokh Conspiracy. Mr. Adler serves on the advisory board of the NFIB Legal Foundation, the academic advisory board of the Cato Supreme Court Review, and the Environmental Law Reporter and ELI Press Advisory Board of the Environmental Law Institute. He has appeared on numerous radio and television programs, including PBS's “Newshour with Jim Lehrer,” NPR's “Talk of the Nation,” Fox News' “O'Reilly Factor” and “Hannity & Colmes,” and CBS's “Entertainment Tonight.
Michael Bogert is senior counsel in Crowell & Moring's Environment & Natural Resources Group. President George W. Bush appointed him in 2006 as counselor to Interior Secretary Dirk Kempthorne. In this capacity, he advised the Secretary on various policy issues regarding endangered species, and served as the lead policy negotiator for tribal water rights settlements, including the landmark Klamath Basin Restoration Agreement. President Bush had previously appointed him as a regional administrator for the U.S. Environmental Protection Agency (EPA). Working in Seattle, he was responsible for leading the EPA's partnerships with the states of Washington, Oregon, Idaho, and Alaska, as well as 271 Federally-recognized tribes in the region. When Interior Secretary Kempthorne was governor of Idaho, Mr. Bogert served as his principal legal advisor, focusing on environmental issues within the jurisdiction of the Idaho Department of Environmental Quality and the Idaho Department of Water Resources. Mr. Bogert has also worked as counsel to the office of California Governor-Elect Arnold Schwarzenegger (2003), and was chief deputy legal affairs secretary to California Governor Pete Wilson (1995-1998).
Jeffery Bossert Clark is a partner at Kirkland and Ellis, in the Washington, D.C. office. He is an appellate litigator with experience in environmental and administrative law. He is experienced with climate change litigation under the Clean Air Act, NEPA, the Energy Policy and Conservation Act of 1975, and the Energy Independence and Security Act of 2007. From 2001 to 2005, he was deputy assistant attorney general for the U. S. Department of Justice, Environment and Natural Resources Division. He has appeared in half of the Courts of Appeals and has filed briefs in every Circuit. Mr. Clark's environmental law expertise includes the Clean Water Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the Surface Mining Control and Reclamation Act; the Federal Land Policy Management Act; the Multiple Use Sustained Yield Act; and the Superfund and RCRA waste disposal statutes.
Jamison E. Colburn is a professor at the Dickinson School of Law at Penn State University. Prior to teaching, Mr. Colburn was an enforcement lawyer for the EPA and performed research for Columbia University's Project on Public Problem Solving on collaboration in local and regional grassroots organizations. Mr. Colburn's work on public lands management, administrative law, takings, and habitat protection has appeared in publications including the Alabama Law Review, Arizona State Law Journal, Ecology Law Quarterly, Florida State Law Review, and George Washington Law Review. He is writing a book, Localism's Ecology: Constraints and Conservation in the Suburban Nation, which offers a new approach to biodiversity conservation in America. Colburn is a member of the American Institute of Biological Sciences and the Society for Conservation Biology, and served as trustee of the Connecticut River Watershed Council from 2003-08.
David A. Dana is associate dean for academic affairs: Faculty and Research Professor of Law at the Northwestern University School of Law. There he has taught courses on environmental law, property, professional responsibility, intellectual property, advanced constitutional law; law and public policy; and the law & economics colloquium. He has also been a faculty member at Boston University School of Law and the University of Virginia School of Law. Before becoming a professor, he was an environmental litigator in both the private and public sectors.
Michael De Alessi is a senior fellow at the Reason Foundation in Los Angeles, where he was formerly director of Natural Resource Policy. His research focuses on developing private solutions to water, marine conservation, and wildlife issues. Mr. De Alessi is author of Fishing for Solutions (Institute of Economic Affairs, 1998) and is co-editor of Marine Resources: Property Rights, Economics and Environment (Elsevier, 2002). Prior to working at Reason, Mr. De Alessi was director of the Center for Private Conservation at the Competitive Enterprise Institute. He has been published in the New Scientist, The Washington Times, San Francisco Chronicle, the Journal of Commerce, the International Herald Tribune, The Wall Street Journal Europe, and numerous other publications.
Kenneth P. Green studies public policy with respect to air pollution and climate change, energy and the environment, transportation and the environment, and environmental chemicals as a resident scholar at AEI. His work includes analysis of Canadian environmental policy. He has authored numerous policy studies, newspaper and magazine articles, several encyclopedia entries and book chapters, and a textbook for middle-school students entitled Global Warming: Understanding the Debate (Enslow Publishers, 2002). Mr. Green has worked on both U.S. and Canadian policy, first at California's Reason Foundation, then for nearly three years at British Columbia's Fraser Institute.
Steven F. Hayward is the F. K. Weyerhaeuser Fellow in Environmental Studies at AEI and a senior fellow at the Pacific Research Institute. He is also an adjunct fellow at the John Ashbrook Center and a former Bradley Fellow at the Heritage Foundation. Mr. Hayward studies the environment, law, political economy, and the presidency. He is the author of the annual Index of Leading Environmental Indicators, published jointly by the AEI Press and the Pacific Research Institute. Mr. Hayward contributes to AEI's Energy and Environment Outlook series and has authored numerous books, including Greatness (Crown, 2005), The Age of Reagan: The Fall of the Old Liberal Order, 1964–1980 (Crown, 2001), and Churchill on Leadership: Executive Success in the Face of Adversity (Crown, 1998).
James L. Huffman is the Erskine Wood Sr. Professor of Law at Lewis & Clark Law School where he teaches constitutional law, torts, natural resources law, water law, jurisprudence, and law and economics. He is a member of the Hoover Institution Task Force on Property Rights, Freedom and Prosperity, serves on the executive committee of the Federalist Society Environmental Law and Property Rights Practice Group, and is a founding board member of the Western Resources Legal Center. His recent publications include “Speaking of Inconvenient Truths – A History of the Public Trust Doctrine” (Duke Environmental Law & Policy Forum, Fall 2007); and “A Mad Scramble for Infrastructure Dollars” in Reacting to the Spending Spree: Policy Changes We Can Afford (Hoover Press, 2009).
Brian F. Mannix served as associate administrator of the EPA from 2005-2009, where he directed the Agency's Office of Policy, Economics, and Innovation. Prior to joining the Bush administration, Mr. Mannix was a senior research fellow in the Regulatory Studies Program at the Mercatus Center at George Mason University; earlier he was the Director of Science and Technology Studies for the Manufacturers Alliance for Productivity and Innovation. Mr. Mannix was Deputy Secretary of Natural Resources for the Commonwealth of Virginia under governors George Allen and Jim Gilmore. He has served on the Recombinant-DNA Advisory Committee at the National Institutes of Health, on an International Trade Advisory Committee at the Commerce Department, and on the New Source Review panel at the National Academies of Science. From 1987-1989 he was managing editor of Regulation magazine and a resident fellow in economic studies at AEI.
Jonathan Remy Nash is professor of law at Emory University School of Law. He specializes in environmental law, property law, civil procedure, and the study of courts and judges. Before teaching at Emory Law, Mr. Nash was a professor of environmental law at Tulane University. Recently, Mr. Nash was a visiting professor at University of Chicago Law School, and he has served previously as a visiting professor at Hofstra University School of Law and a visiting scholar at Columbia Law School. Mr. Nash is published in many law journals. Prior to teaching, Professor Nash was a law clerk both to the Honorable Donald Stuart Russell of the U.S. Court of Appeals for the Fourth Circuit and also to the Honorable Nina Gershon, who was at the time the chief magistrate judge of the U.S. District Court for the southern district of New York.
Henry Olsen is vice president and director of the National Research Initiative (NRI) at AEI. He disseminates and publicizes the Institute's work to the academic community; works with AEI's visiting, adjunct, and NRI research fellows; commissions and supervises NRI projects; and oversees the production of NRI publications. Mr. Olsen previously served as vice president for programs at the Manhattan Institute and as a judicial clerk to the chief judge of the U.S. Court of Appeals for the Sixth Circuit, Danny J. Boggs.
Rafe Peterson is a partner in the government section at Holland & Knight L.L.P. He primarily practices in the area of environmental compliance and litigation, focusing on the Clean Water Act, the Endangered Species Act, the National Environmental Policy Act, and resource issues. Mr. Petersen is experienced in environmental litigation at both trial and appellate levels and has filed several amicus briefs before the United States Supreme Court. In addition, he assists clients in complex permitting and regulatory issues for large scale commercial, residential and mining projects.
J. B. Ruhl is a professor of property at Florida State Law, where he has worked since 1999. He teaches courses on environmental law, land use, and property. He served as visiting professor of law at Harvard Law School in spring 2008, and has visited for summer teaching at a number of law schools. He is a co-author of two recent casebooks, and also recently published The Law and Policy of Ecosystem Services (Island Press, 2007). Mr. Ruhl has served as the executive editor of the American Bar Association's (ABA) Natural Resources & Environment law quarterly, and as the publications officer of the ABA's section of environmental, energy, and resources law. Prior to joining the Florida State Law faculty, Mr. Ruhl taught at Southern Illinois University and at the George Washington University Law School. He has also practiced law in the private sector, specializing in environmental and natural resources law in Austin, Texas.
Lynn Scarlett is an independent environmental consultant working on issues pertaining to climate change, ecosystem services, and landscape-scale conservation. She currently serves on the Department of the Interior's (DOI) National Commission on Climate and Tropical Forests. From 2005 -- 2009, she served as deputy secretary and chief operating officer of the DOI, after having served previously as the DOI's assistant secretary for Policy, Management and Budget. From June 2003-2004, she chaired the federal Wildland Fire Leadership Council, an interagency and intergovernmental forum for implementing the National Fire Plan. She initiated the DOI's Cooperative Conservation Task Force and served on the Executive Committee of the President's Management Council. Ms. Scarlett serves on the board of the American Hiking Society, is a trustee emeritus of the Udall Foundation, and has chaired the DOI's Climate Change Task Force. She is author of numerous publications on incentive-based environmental policies. She is an avid hiker, canoeing enthusiast, and birder.
David Schoenbrod is a trustee professor of law at New York Law School and a visiting scholar with AEI. Mr. Schoenbrod is a co-leader for "Breaking the Logjam: An Environmental Law for the 21st Century," a joint project of New York Law School, NYU School of Law, and NYU's Environmental Law Journal. He frequently contributes to the editorial pages of The Wall Street Journal, The New York Times, and other newspapers and periodicals. As staff attorney for the Natural Resources Defense Council (NRDC) during the 1970s, he led the charge to get lead out of gasoline, dramatically helping to reduce the amount of the brain-damaging contaminant in the air. One of his books, Power Without Responsibility: How Congress Abuses the People Through Delegation (Yale University Press, 1993), was the genesis for the 1996 Congressional Review of Agency Rule Making Act. He has published articles in scholarly journals on environmental law, remedies, and the law and politics of regulation. Mr. Schoenbrod's academic career includes positions at Yale Law School and New York University School of Law.
William Snape is the environmental fellow and practitioner in residence at the Washington College of Law, American University. He also serves as senior counsel to the Center for Biological Diversity, where his emphasis is on global warming, endangered species and public lands conservation. He is currently a member of the President's Trade and Environment Policy Advisory Committee and is vice-chair of the American Bar Association's Animal Law Committee. For over a decade, Snape was vice president and chief counsel at Defenders of Wildlife, where he oversaw all domestic and international legal programs, provided legal counsel on all program policy and directed the organization's litigation before various courts and tribunals. Mr. Snape is the author of numerous articles on natural resources policy, and is the editor of Biodiversity and the Law (Island Press, 1996). Mr. Snape has taught at several law schools, including George Washington University, Georgetown University, and the University of Pennsylvania. Mr. Snape is also currently the head swim coach at Galludet University.
David Sunding is the Thomas J. Graff Professor of Natural Resource Economics and Policy at the University of California-Berkeley, where he also directs the Berkeley Water Center. He has written extensively in the fields of environmental economics, natural resource economics, water resources, land use, wetlands, water quality and endangered species. Prior to his current position at Berkeley, he served as a senior economist at President Clinton's Council of Economic Advisers. He is a founder and director of Berkeley Economic Consulting, Inc., an independent economic research firm. He has also advised on transactions in the energy and utility sectors, and has been an advisor to several private equity firms. He is a member of the American Economic Association, the Association of Environmental and Resource Economists, the Econometric Society, and the American Law and Economics Association.
R. Neal Wilkins is a certified wildlife biologist. He currently serves as director for the Texas A&M Institute of Renewable Natural Resources, and is a professor in the Department of Wildlife & Fisheries Sciences, Texas A&M University. He focuses on the application of research to solve natural resource problems through strong science, clear policy, and effective outreach. His work is directed toward land conservation and resource management on private lands in Texas and elsewhere. His projects are multi-disciplinary, engaging research scientists with policy, economics and land management. Mr. Wilkins is a vice president for Texas Wildlife Association, a trustee for the Foundation for Research on Economics and the Environment, and Texas governor Rick Perry recently appointed him to serve on the Texas Farm & Ranch Conservation Council.