How environmental laws turned forests into tinderboxes. Richard Epstein writes:
[The National Environmental Policy Act] was originally conceived as a device to encourage collaboration among government officials and various public and private groups to achieve its ends. But in 1971, Judge J. Skelly Wright of the District of Columbia Circuit Court of Appeals added a new dimension to the equation in Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, which held that, in light of NEPA’s strong environmental mission, any private party could bring an action in federal court to review any administrative approval of a proposed project. He then celebrated this development in no uncertain terms: “These cases are only the beginning of what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment.”
That judicial maneuver transformed the statute. Most parties did not want to sue to block projects. It was only the activist environmental groups with the strongest commitment that came forward. And when they did, there was no longer a collaborative process that involved parties on all parts of the political spectrum. Now the sole party before the court was the group most determined to see the project or activity stopped. […]
The successful management of any complex environmental system requires complicated tradeoffs between various objectives like the preservation of diverse species, fire prevention, the construction of dams and waterways, and the harvesting of valuable timber. But any tempered approach of balancing costs and benefits of environmental regulations was effectively scuttled by the Supreme Court in Tennessee Valley Authority v. Hill (1978), which took the position that the recent discovery of a new endangered species, the snail darter, took priority over the completion of the Tellico dam, which was in the final stages of construction. The notion of tradeoffs was pushed emphatically to the back burner.
The combination of [the Endangered Species Act] and NEPA shifted the environmental movement in the wrong direction. One result was, as Congressman McClintock noted, an 80 percent reduction in the number of trees that were harvested and sold on public lands in California reducing the number of operating saw mills there from 149 in 1981 to 27 in 2017.
[Richard A. Epstein, “California’s Forest Fire Tragedy,” Hoover Institution, November 19]
