On Tuesday, November 5, 2013, The Harvard Federalist Society hosted John A. Baden, Ph.D., to speak on the topic “Private Management of Public Lands.” Baden is the founder and chairman of the Foundation for Research on Economics and the Environment (FREE) based in Bozeman, Montana. FREE promotes free market environmentalism as a way to protect national parks, forests, and wild lands. Matthew Stephenson, Harvard Law School professor, offered a response. Stephenson’s areas of interest include Administrative and Constitutional Law, as well as Environmental Law.
Baden’s discussion paralleled his recent paper, “Preserving America’s Wild-lands when Governments are Broke & Broken: A proposal for institutional and ecological entrepreneurship,” which specifically addresses the topic of free market environmentalism in light of the recent government shutdown. According to Baden, the traditional approach to the management of parks and wild lands—management by federal institutions—is failing, has been failing for some time, and is unsustainable in the future.
The reason for this failure is in an inherent problem of the approach: the politicization that necessarily accompanies federal management. According to Baden, the government shutdown at the beginning of October, during which national parks and monuments were closed to the public and veterans were turned away from the WWII memorial, is indicative of this problem and foreshadowing of future issues. We can expect that as pressures upon the federal government continue to increase, funds will be shifted to other resources and maintenance of federal lands will inevitably fall by the wayside.
Baden’s proposed solution to this predicament is the transfer of management of parks and wild lands to fiduciary trusts. He cited three major advantages of these trusts over management by politically dependent agencies: greater sustainability, more transparency, and a higher burden of proof. They offer greater sustainability than sustained yield laws because they are obligated to preserve the corpus of the trust. They are more transparent than freedom of information laws because they are legally obligated to open their books to the beneficiaries. Furthermore, in a challenge to management efforts by governmental agencies, the burden of proof is on the challenger; trustees, on the other hand, bear the burden of proof themselves.
In response, Stephenson questioned the true problems that Baden was attempting to solve by this proposed transfer of federal land management to fiduciary trusts. While politicization and poor management were the two primary concerns addressed by Baden, Stephenson argued that these were neither particularly strong issues nor the true catalysts behind Baden’s proposal. Although Baden asserted as incontestable the poor management record of federal agencies, Stephenson pushed back a bit on this, suggesting that it is not quite so clear that trusts would in fact do a better job than federal agencies in the management of these lands. Similarly, Stephenson posited that the politicization of land management might not be a significant issue either, particularly when compared to the politicization that exists in other agencies.
On the other hand, Stephenson saw Baden’s proposal as a way to address the issues of chronic long-term fiscal sustainability and acute overreaction to perceived fiscal problems. Although Stephenson questioned the degree to which these actually are issues, he acknowledged that to the extent that they do exist, the use of trusts might be a clever way to shield parks and wild lands from them.
In conclusion, however, Stephenson emphasized the need to evaluate the credibility of the commitment of these trusts to the management of parks and wild lands. How will trusts be designed? How will their success be measured? What kind of control will the government have over them? What if we do not like what they are doing? What if the government tries to take the land back? These questions should be taken into account if fiduciary trusts are to be given management responsibilities of parks and wild lands.
Baden’s article is available at http://www.free-eco.org/insights/article/preserving-americas-wild-lands-when-governments-are-broke-broken-proposal