Conservation scientist J. Christopher Haney, who was brought in by Fish & Wildlife to lead the largest study of pelagic birds in the Gulf Coast in the aftermath of the Horizon blowout, likes to count. In his recently released book, “Woody’s Last Laugh, How the Ivory-Billed Woodpecker Fools Us into Making 53 Thinking Errors,” he documents a hundred years of flawed thinking and makes some broad suggestions, an encouraging read in this time of loud, angry voices.

Many species facing extinction get little play in the press. Not so the Ivory-billed Woodpecker (IBWP): A putative spotting in the Big Woods of Arkansas in 2004/5 generated over 450 media reports, and arguments about the status of the species are often as acrimonious as current political dust-ups. As many know, the US Fish and Wildlife Service declared the species officially extinct seven months ago, despite persistent claims of sightings that continued after the announcement.

Haney admits that he chuckled in a snarky way when he read the F&WS announcement, not because extinction is funny, “it’s deadly serious,” but because, Here we go again….

In his younger years, Haney considered the extinction of the nomadic Ivory-billed Woodpecker (IBWP) a resolved issue, and concentrated on other questions. He admits that the status of the IBWP was never a big deal to him. He thinks of the species as a “big black, white and red woodpecker,” of which we have another so alike it is hard to distinguish, the pileated woodpecker. But eventually he was drawn in.

Haney’s father was a book salesman, and gave his young son many 19th century bird books, mostly seconds, that Haney read carefully. In the hoopla following the possible IBWP sightings some time ago, he found that the bird being described in the newspapers in the early aughts bore no resemblance to the bird described by naturalists in 1873. Yet the real tipping point for his thinking was driven by his observations of how people responded to the reports, and he embarked on a ten-year study of that phenomenon.

He hypothesizes that we have a “pig-headed death wish” for the bird because it does not conform to our expectations, and that this began in the late 1800s just as the US frontier was closing, causing the American public to engage in a lot of myth-making tied to the wilderness.

The somewhat incomprehensible errors that pushed the bird toward a “symbolic grave” began in the 1930s, when UT Knoxville ornithologist James Tanner saw them eating large grubs in pristine old growth forests. Those forests were “felled to the wartime ax” in the 1940s, and ornithologists decided the species could not adapt and would be forced into extinction. (People thought this about the similar pileated woodpecker around the same time.) Tanner did not follow the bird, which may be or have been an opportunistic wanderer. And importantly, his belief that they could only survive in virgin bottomland hardwoods was directly contradicted by a photograph taken by his own mentor showing a pair in piney flat woods, with a female on the ground—which supposedly doesn’t happen—amid scrawny trees.

There’s a lot in the book, but we’ll cut to a few of the biases Haney outlines, harking back to the work of Kahneman and others on our thought processes, always good reminders.

Anchoring bias, we have been anchored to the belief the bird is likely extinct for one hundred years, largely because of misconceptions about its diet. Haney points out that a bird so narrow a specialist would never have survived into the modern era, referencing the waves of extinctions that killed off 34 mammal genera over the years.

We often get extinctions wrong. We’ve re-found over three hundred species that were once believed extinct over the last hundred years, and we tend to rush to a belief in extinction rather than to a default that the species is alive somewhere. The Bermuda petrol, a sea bird of similar size, was listed as extinct in 1620, but in fact populations in the low single digits managed to hide out in the open terrain of Bermuda’s tiny islands to be rediscovered 300 years later. This is the Romeo bias, the serious error that led Romeo to kill himself when he believed Juliet was dead. Listing the ivory-billed as extinct takes it out of field guides, and makes it less likely that people will be able to identify individuals if seen, which will limit our understanding. In addition, the extinction stamp removes protections from potential habitats.

Haney makes the stunning observation that we take all sight reports before 1915 at face value and accept them, yet between 1915 and 1940 they became controversial, and every observation after 1940 has been attacked. He points out that in the 1800s observers were riding on horseback through tough terrain, without binoculars, while more recent observations benefit from excellent optics, lots of field guides, and “a cohesive birding fraternity unafraid to levy ruthless verdicts from doubting peers.” That we have changed our criteria across historic eras, essentially dismissing a whole class of people because they are “suggestable,” reflects fundamental attribution error. And it only goes in one direction: people are believed to have mistaken a pileated for an ivory-billed, never the other way around. There have been over a hundred sightings through the final decades of the 20th and into the early decades of the 21st centuries, which Haney considers important.

The math supports Haney’s view that we don’t know. He argues that we would have to send observers into every one of the 90,000 acres where the IBWP was once seen 254 times to be 99% sure it is not there. Even if there are as many as 500 birds remaining, sprinkled throughout ten southern states, the probability of seeing one is not zero but close to. A prior study costing $1.6 million got through only 12% of the territory, and was abandoned, with analysis suggesting if there were 100 birds a very poor sighting might occur every 2 years, but even a blurry photograph would probably take 20.

Haney closed one interview by noting that birders generally only accept indisputable sightings—“A 70% probability may be OK for stock-picking,” but not for science. But he calls keeping lists only of verified accounts nothing but a limiting hobby, and that hobbies are not “granted the final word on truth,” as we search of what is reliable in our universe. The IBWP described in ornithological science is not the same as the birders’ IBWP, we have to look at the math, look at the social identities of those arguing for and against—for example, southern hunters might want to keep federal regulators off their hunting grounds—and perhaps give some credence to recent sight reports. He suggests the safest thing to do is back away from this mind trap and say, “I don’t know,” a useful three words, if seemingly easier to say by those with broader knowledge.

Based on potential orbital debris and light pollution, The GAO recently published recommendations that the FCC review and document whether licensing of mega-constellation satellites “normally does not have significant effects on the environment,” establish review process and a time frame for its “categorical exclusion” of such licensing, and make public the factors FCC considers in determining “extraordinary circumstances.” They also report that FCC agreed with their recommendations.

Although a debate over whether people have a right to a dark night sky hasn’t been on the radar screen for all but a tiny and recent sliver of human history, in early 2020 then Vanderbilt law student Ramon J. Ryan argued in The Fault of Our Stars that the FCC should back away from its categorical exclusion of satellites from environmental review, and complete an environmental assessment of direct, indirect and cumulative effects of commonly used satellite components on the environment. Noting that programs like Starlink have the potential to provide internet to billions of people lacking access, such a process would create standards in the commercial-satellite industry that would comply with Congress’s mandate that the federal government proactively consider environmental impacts of its actions, without denying possible positive effects on economic stability and access. He cites NASA’s environmental review of routine payloads in their missions as a model.

In 2019 about 2,200 satellites were orbiting the planet, a number Ryan suggested should increase five-fold in the next few years. Scientific American (SA) now reports that SpaceX alone has been granted permission to launch 12,000 in the next years, with plans for another 30,000, and almost all brighter than anything currently in orbit.

Then a FCC spokesman rejected Ryan’s argument, but other lawyers interviewed for the SA piece believe there is ample precedent, including a successful questioning by environmental groups of the National Institute of Health’s approval of recombinant DNA bacteria without proper review, and the US Army Corps approving licenses for gambling ships in the Mississippi. Considerations mandated under the National Environmental Policy Act include direct and indirect effects on “aesthetic, historic, and cultural” considerations, and Sarah Bordelon, an environmental lawyer, believes that Ryan’s argument that the night sky falls into those categories is “not a crazy argument.” Good to know! Bordelon’s argument includes astronomers’ inability to do their jobs, which would give them standing, and she believes if the FCC missed a significant issue, they would likely lose a legal challenge.

In what the SA calls a “belated attempt” to solve astronomers’ concerns, SpaceX has tried a light-reducing coating for some satellites, but it’s not clear that is working. A court battle would last for years, and there could be an injunction prohibiting new launches. Please remember, it’s our money and this is important information on balancing the possibilities of mega rockets—like obviating the need to fold the James Webb Space Telescope up so it would fit into a rocket—with our love of our night sky.

And anyone reading through a startup’s prospectus that includes such things as a use of mercury rejected by NASA fifty years ago, please take heed.

Philippa Dunne & Doug Henwood

Federal Trade Commission Chair Lina Khan has an opinion piece in the New York Times covering the FTC’s proposal to forbid the use of noncompete agreements (NCAs). We want to highlight new research presented in one of the papers she cites, “The Labor Market Effects of Legal Restrictions on Worker Mobility,” by Duke’s Matthew Johnson, Ohio State’s Kurt Lavetti, and Michael Lipsitz of the FTC. The paper makes many points, and references work on the rise of superstar firms, on domestic outsourcing, and on the weakening of unions as possible pressures causing the “downward acceleration” of labor’s share of income. Then they present their new work on gauging the effects of levels of NCA enforcement.

On the bright side, NCA could increase firms’ investment in training, knowledge that might increase workers’ productivity and earnings, but research suggests a darker pattern of depressed earnings instead. When we have written about NCAs pressure on wages and start-up formation in the past, some readers have suggested they are not a problem as they are not enforced. That is true, however, research suggests they are nonetheless threatening to workers who may not understand that, especially low-wage workers with lower educational attainment.

There are also cases of lawsuits involving stiff fines for low-wage violators, and the use of NCAs is growing. A recent study found that somewhere between 28 and 47% of private-sector workers are subject to NCAs. The authors referenced a 2014 “high-quality” study that put the share at 18%, noting the disparity may be explained by the passage of time.

Understanding how NCAs affect labor markets has proved “elusive,” and lack of comprehensive panel data has limited research on enforceability, leaving other potential but unobserved causes lurking. Johnson, Lavetti, and Lipsitz’s paper constructs a new panel that employs “within state changes” to isolate the effects of enforceability. They make the interesting point that the “vast majority” of changes in enforceability law come through judicial decisions, and suggest that’s a consequence of the importance of precedent in law in the courts. To them, judges are “more constrained than legislators in allowing economic or political trends to affect decisions.” They, tactfully, point out that was helpful in the design of their research.

Their research found that although, in their estimates, about 17% to 47% of the workforce is bound by NCAs, the effects extend beyond those workers. Negative externalities on wages including reduction of labor market churn, thinning labor markets, and higher recruitment costs. In studying markets that cross a state border, they found changes in enforceability in one state affected workers in the adjoining state. They cite the large body of literature showing that employed workers’ wages rise when their outside options improve, and that wages are more closely aligned with the minimum unemployment rate over the course of one’s job spell than to the rate when the spell began. Although they find this holds true on average, in states employing strictly enforceable NCAs the minimum unemployment rate has “essentially no effect” on the workers’ current wages, while the rate at the beginning of employment has a much stronger effect. In states with low enforceability, the effect of the longer run unemployment rate is “even more pronounced,” the start rate less.

They show NCAs extend inequality. Women are less likely to violate terms of their NCAs and more hesitate to commute, and strict enforceability reduces earnings of non-white and female workers by twice the reduction of white male workers’ wages.

They conclude that strict enforcement of NCAs ”fundamentally changes” wage negotiations, moving them from a model of implicit contracts and costless mobility, to one of implicit contracts and costly mobility. They find that by shutting down on-the-job wage growth, enforced NCAs deprive workers of a primary way to increase their incomes. By regressing the labor share of income at the state level using NCA enforceability, they find a jump from the 10th to the 90th enforcement percentile is associated with a 2.3pp decline in labor’s share of income. And that 2.3pp difference is about one-third of labor share’s decline over the last 80 years.

The FTA proposed rule is up for public comment, and Khan invites us, especially those directly involved, to weigh in to make sure their work is based in reality, not theory.

There is a lot of scholarship on this topic. Chair Khan doesn’t mention the link to former slave-holders following the Civil War—a tie shared with tipped employment—but that work is available two-clicks into the footnotes. Ayesha Bell Hardaway’s Paradox of the Right to Contract is a classic.

Instead dismissing NCAs because they are often not enforced, it might be more useful to wonder how our society came to tolerate repurposing a covenant designed to protect intellectual property to preventing a minimum wage worker from seeking higher wages at a different establishment. The personal damage caused by NCAs falls disproportionately on minorities and women, but the overall damage to productivity, new business formation, disruption and innovation, affects us all.

Philippa Dunne & Doug Henwood