Will Pennsylvania’s trust approach to public lands reduce conflict?

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Monday, July 3, 2017

In Pennsylvania, former enemies—loggers and green activists—could be partners in conservation.

A handful of state constitutions recognize a right to a clean environment. Pennsylvania's is the oldest and guarantees a right

to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

The Supreme Court of Pennsylvania recently interpreted the state's Environmental Rights Amendment to convert the state's lands into a trust which cannot be sold or leased unless the proceeds are put to conservation purposes. The decision, which appears obvious from the plain text of the amendment, was a substantial departure from precedent—which had rendered the amendment toothless by adopting a standard that was extremely deferential to government (a problem very familiar to libertarians).

Prior to the case, decisions to allow fracking, mining, or timber harvesting were heavily politicized. For government, these activities were a revenue raiser; the funds went to the state treasury to be used for any purpose. For environmentalists, these activities were a threat to the environment that they consistently lobbied and litigated against.

The decision may inadvertently work a sea change in public lands policy in the state. Now, environmentalists will have an incentive to support some productive use of state lands to generate funds to pursue higher value conservation projects. The lack of such incentives explains why environmental groups regularly oppose productive use—they don't see any benefit.

As PERC's Terry Anderson and Donald Leal explain in Free Market Environmentalism, environmental groups respond to incentives and make trade-offs when they get to capture the benefits. When the Nature Conservancy receives new property, it evaluates the environmental qualities of the land and compares the benefits of conserving it with the benefits of selling or developing it to finance other conservation projects. For instance, the Nature Conservancy received valuable beachfront property in the Virgin Islands. Although you might expect that they would go to great lengths to preserve ocean front property in the Caribbean, the group instead traded it for a much larger and ecologically significant property in Wisconsin.

Although the existence of tradeoffs is undeniable and we all make them in our daily lives. Too few environmental groups openly accept and embrace them. Consider the reaction to the unsurprising revelation that the Nature Conservancy allows oil and gas development on some of its lands. Naomi Klein and the New York Times criticized the group. Salon questioned whether the group is really environmentalist if it would allow drilling:

The Nature Conservancy has earned millions from gas and oil drilling on its Texas property, even if this specific well didn’t turn out to yield many profits. More so than the money, the revelation raises questions about the group’s commitment to some basic environmental objectives.

That is, in a word, hogwash. Only someone who is absolutely certain they will never have to put their money where their mouth is would proclaim that preventing any and all productive use of land is a basic environmental objective. You can want to minimize the environmental impacts of economic growth while recognizing that the optimal amount of those impacts isn't zero.

The Supreme Court of Pennsylvania's decision will put the state's environmental groups in more situations to make choices like those the Nature Conservancy faces as a landowner. Groups that previously would have opposed logging as a matter of course will now have to consider whether the money might enable them to protect critical habitat for an endangered species or improve a state park. 

According to a PERC report, lands managed according to trust principles raise substantially more revenue per acre than those managed pursuant to politics and regulation. A trust for Pennsylvania's public lands could generate substantial revenue for conservation while reducing the paralyzing conflict (lobbying and litigation) that typifies public land use generally.

In Pennsylvania, former enemies—loggers and green activists—could be partners in conservation. Whether the prospect of new conservation revenues will lead Pennsylvania's environmental community to support productive use of these lands remains to be seen, but there's a lot to be gained if they do.

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