But this
could be only the opening shot. Tempers also are growing short
over the use of “regulatory takings” – government-imposed
rules that deprive owners of the full use of their property without
compensation. Such takings, which amount to eminent domain by
the back door, were in the spotlight at the Supreme Court last
week, where oral argument took place on a pair of cases emanating
from Michigan.
The first
involves a Midland developer, John Rapanos, who has been fined
millions of dollars for filling in three parcels of property alleged
to contain wetlands. The second involves developers June and Keith
Carabell, who were prevented from building a 112-unit condominium
complex in suburban Detroit after regulators determined it might
jeopardize the “navigable waters” of the United States.
But the Carabell
development is more than a mile from any recognizable navigable
water. In the Rapanos case, navigable water is at least 20 miles
away. With the addition of Chief Justice John Roberts and Associate
Justice Samuel Alito, observers are betting that the Supreme Court
may be even less sympathetic to the argument that any trickle
of water amounts to a “navigable” river.
Even the
politicians are starting to get the message. The House of Representatives
recently passed a bill making it tougher to use the Endangered
Species Act to clamp land use restrictions on ranchers, farmers
and others who just happen to be hosts to a supposedly threatened
species. The bill may not survive in the Senate, but it reflects
outrage at how a relatively uncontroversial law has been used
to undermine the Fifth Amendment’s ban on takings without
just compensation.
And in another
sign of the times, the Oregon Supreme Court last week upheld a
2004 referendum that requires the state to compensate landowners
for the value of their land lost due to a regulatory taking. Critics
complain the Oregon rule would be too expensive, but that’s
precisely the point. Aside from the issue of citizens’ basic
rights, it would force politicians to consider costs as well as
benefits when they seek to posture as the guardian of the environment
at other people’s expense.
“Too
expensive” is a way of saying that bureaucrats don’t
think they can coax the people – damn them! – into
paying for their enthusiasms. If there is a good reason for a
regulatory taking, at least government should be willing to pay
for it.
The merits
of some of the anti-eminent domain laws now pushing to the fore
can be debated. The Michigan legislature, for example, overwhelmingly
approved a November ballot asking voters to limit the use of eminent
domain and requiring compensation equal to 125 percent of fair
market value even when the power is used for legitimate purposes.
Critics will no doubt argue that this will simply drive up the
cost of legitimate public projects.
But this
is just the sort of backlash government can expect when it has
ridden roughshod over property rights for so long. Societies in
which property rights are endangered or nonexistent tend to be
poor societies – and poor societies tend to be badly polluted
societies. True environmentalists should be working with property
rights rather than trying to evade them.
