In July, 2017, employees from the National Butterfly Center—a 100-acre butterfly preserve in South Texas owned and operated by a private nonprofit organization—discovered chainsaw-wielding strangers destroying habitat the group had carefully restored. The strangers were contractors hired by the Department of Homeland Security to clear the land in anticipation of border wall construction. When the organization protested, it learned that the government planned to seize control over more than two-thirds of the preserve, destroy much of the habitat, and bisect the property with a border wall or fencing. Facing the loss of its property and destruction of its conservation work, the organization did what many would do in the same situation: sued.
In addition to the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) claims, the organization asserted the government’s actions violated its constitutionally protected property rights. Last year, a federal court dismissed the case, a decision the organization appealed. This month, the D.C. Circuit revived the case, in part, and implicitly demonstrated why property rights are a firmer foundation than politics for conservation.
The D.C. Circuit affirmed the dismissal of the NEPA and ESA claims. Congress has authorized Homeland Security Secretary to waive these laws for purposes of border construction, a decision that several courts have held is beyond any courts’ authority to question. But the D.C. Circuit held that the constitutional property-rights claims can proceed because neither Congress nor the Executive Branch can waive them. Consequently, the trial court will soon consider whether the government’s entry onto and destruction of the organization’s property was constitutionally legitimate.
The case is a helpful reminder of the risks of relying on politics to advance conservation—or other goals for that matter. What one Congress, President, or agency gives, it can just as easily take away. The only political defense would be to win every election and control every agency at all times—a virtual impossibility. Where conservation is pursued through the free market or secure property rights, on the other hand, it is immune to shifting political winds.
We’ve grown accustomed to the fact that every four or eight years a new President will set to reversing many of the major policy decisions of his predecessor only to have his policies inevitably reversed by his successor. The scope of the Clean Water Act, for instance, has yo-yo’d so much that basically no one knows what that law means.
Policies enacted by Congress are somewhat more stable because they require an act of Congress to reverse. But even they’re not set in stone.
In 1978, the Supreme Court interpreted Congress’ 1973 enactment of the ESA as setting the protection of endangered species as the nation’s highest priority to be pursued “whatever the cost” to competing policy goals or effect on people and communities. Whether this was actually the view of the 1973 Congress is debatable, but one thing is for sure: it was not the view of the 1978 Congress, which promptly amended the ESA to require consideration of economic and other factors and even to authorize political appointees to okay the destruction of a species’ last known habitat. Subsequent Congresses have delisted species legislatively or, as in the case of the border wall, authorized politically salient projects to proceed without any consideration of the effects on endangered species.
Conservation pursued through the market and property rights, however, is protected from shifting political winds. When the Supreme Court struck down the critical habitat designation for the dusky gopher frog and the U.S. Fish and Wildlife Service proposed a changed approach to designating critical habitat, this had no effect on the Nature Conservancy’s efforts to conserve and restore dusky gopher frog habitat on its private property. And, as the National Butterfly Center’s case shows, where government interferes with private conservation efforts, the Constitution’s protection for property rights and private contract provide ways to protect conservation values and hold interfering government actors accountable.