Wise Use's Conservative Assault

Florence Robinson arrived at the Louisiana state capital one day last May, a sheep in wolf's clothing. She was there to fight a bill that radically redefined property rights in Louisiana. If it passed, state and local governments would have to pay landowners for economic loss caused by virtually any government action-what is called a regulatory taking. An African-American activist with the environmental-justice group Gulf Coast Tenants Association, Robinson was supposed to testify against the bill. Instead, she signed up in support. "What's wrong with Florence?" her fellow environmentalists wondered uneasily as she approached the microphone. "She's gotten mixed up or something." The bill's sponsor, Representative Noble Ellington, also asked incredulously if she supported the bill. "I'm a strong supporter of this bill," Robinson testified. "This bill gives us citizens a new tool, and, gentlemen, I promise you just as soon as this bill becomes law, we citizens and property owners who live within four miles of any chemical industry, landfill, Superfund site, incinerator, or anything else that is an environmental hazard or nuisance or anything perceived as an environmental hazard or nuisance . . . are going to hire more New York lawyers than you can shake a stick at . . . and we'll find creative ways to use this law so that we can receive just compensation for our devalued property. "I'd like to further say that in the last couple of years I've become very good friends with CEOs of some real big chemical companies, and I've become very sensitive to their problems. This bill would help my friends to unload some of that contaminated property, and all the liabilities thereon, onto the state. Thank you very much for this bill." Robinson was straight-faced and brief, but her allies were in stitches. Even Ellington chuckled, "I don't know how much more of that kind of help I can stand." His bill died in committee, but Louisiana did pass a less sweeping version, one of thirteen takings bills passed this year in state legislatures across the country. Takings provisions are also a common ingredient in federal bills designed to gut protections for clean water, wetlands, and endangered species. The Contract with America contained the Private Property Protection Act, which was passed by the House. Budget director Alice Rivlin puts the bill's price tag at $28 billion. Senator Bob Dole has also introduced an extreme property-rights bill that some argue would virtually shut down government -- Rivlin says it would cost "several times" $28 billion to enact this "radical, harmful, and expensive compensation scheme." "It no longer becomes important whether the government's actions are in the best interests of the whole society," says Robinson. "The government -- that means us citizens, taxpayers -- ends up having to pay. Of course the ones who are going to benefit from this are the large property owners. We aren't talking about ma and pa farmer. We're talking about the large landholders, which generally are banks or big corporations." For instance, in Florida, a coalition of twenty companies called the Florida Lands Council has been lobbying hard to increase corporate property rights beyond constitutionally recognized bounds. An investigation by the Palm Beach Post in 1994 found that these big landowners -- including agribusiness, developers, and timber -- owned nearly one-third of the private, undeveloped land in the state. The U.S. Sugar company alone poured more than $2 million into an effort to amend the constitution to radically extend property rights in Florida. The relentless corporate pressure finally led to a property-rights law enacted last spring, which will likely have dire consequences for conservation efforts, including a Palm Beach County plan to preserve 20,000 acres of agricultural land.The rallying cry of property-rights advocates is the final clause of the Fifth Amendment to the Constitution: "nor shall private property be taken for public use without just compensation." The courts have been the traditional arbiter of takings claims, and during this century the Supreme Court has slowly expanded the definition of takings, recognizing that regulatory restrictions on property can affect value. But the courts have stopped far short of granting the rights claimed by takings supporters. Marshall Kuykendall, head of the property-rights group Take Back Texas, revealed the extremism of the takings movement when he said: "When Lincoln freed the slaves, he did not pay for them, and that was a taking." Takings theory builds on the libertarian economics of University of Chicago law professor Richard Epstein. In his 1985 book, Takings, Epstein sought to label the bulk of twentieth-century social legislation, from the minimum wage to workers' compensation, as a regulatory taking. Attorney General Ed Meese adopted these ideas for the anti-regulatory agenda of the Reagan Administration. From there, takings moved to the conservative American Legislative Exchange Council, and into the anti-environmental Wise Use movement. Publicly driving the movement are anecdotal horror stories of regulatory excess, where average citizens cannot build a home or harvest a wood lot because of unyielding regulation. But behind the little guys are the natural-resource companies that helped form the Wise Use movement. Regulatory takings have become a Wise Use centerpiece, allowing the group to make common cause with the broader conservative movement nationwide. "With regulatory takings, the Wise Use movement has found a point of access in that vast demographic base located in suburbia," says Tarso Ramos, of the Western States Center, which monitors the Wise Users. "First, you wrap yourself in the Constitution-pretty populist, pretty popular. Second, you provide that little-guy face for a large corporate agenda." Indeed, if takings advocates successfully redefine property rights, the legal and physical landscape could become frighteningly surreal. Consider these scenarios, offered by the National League of Cities: * If the EPA prevents the construction of a hazardous-waste facility, the company might sue, arguing that the decision reduces the value of its land and is thus a regulatory taking. * If the Bureau of Alcohol, Tobacco, and Firearms bans the importation of certain weapons, the holder of import licenses for these weapons might successfully argue that this constitutes a taking. * If a coal company mines too much coal, cracks could open on the Earth's surface, destroying roads and homes. But if the government limits the amount of coal mined to protect the people who live above it, a mining company could argue that its profit is being "taken."The stakes in coastal Louisiana are most evident at high tide. After severe flooding in 1927, the state channeled the Mississippi River directly into the Gulf of Mexico. Deprived of the river's sediments, the coast has been sinking ever since, losing more than the area of Rhode Island since 1930. Thirty-five square miles of coast are lost every year; in some areas you can no longer get a thirty-year mortgage. Louisiana hopes to re-engineer its coasts by rebuilding barrier islands and rediverting sediment and fresh water. The project will use $60 million a year in state and federal funds, and will require a degree of planning that rural coastal communities have not experienced before. Some Louisianans worry that landowners will try to use the new takings law to siphon some of that money away. "We're not approaching this as an academic discussion of government and the rights of man. We're talking about what it's going to take for us to be able to stay here," says Mark Davis, executive director of Coalition to Restore Coastal Louisiana. "And if we do not inject a measure of planning and workable regulation, the great irony is there won't be much private property in coastal Louisiana left to protect." Nowhere is the takings question more important right now than in Washington State, where the public has by now determined the fate of a sweeping change in property rights. The property-rights movement in Washington is in part a backlash against planning. In 1990, Washington, besieged by explosive growth, passed the Growth Management Act, which set forth planning guidelines for fast-growing counties. But even as municipalities set their sights on controlling the social and economic costs of growth, leaders of the Wise Use movement -- which counts its strongest support in Washington -- set their sights on the Growth Management Act. Their weapon was Initiative 164, a law to require compensation for any restriction on private property. The bill, opponents say, would cost more than $1 billion and destroy the ability of communities to control their destiny. Initiative 164 failed to reach the legislature in 1994 for lack of signatures. Then, an infusion of nearly a quarter million dollars from Realtors, developers, and timber interests helped pay signature gatherers, and the initiative went to the new Republican legislature last spring. When 164 passed, activists had only three months to gather 90,000 signatures to forestall enactment of the bill, and force it onto the November ballot. They were wildly successful, collecting 231,000 signatures, and now voters must decipher the dueling visions of property rights. The outcome will fundamentally determine the nature of community. "Farmers are scared to death in this state," says Patrick Batts, the executive vice president of the Washington State Farm Bureau and a strong supporter of 164. "They're seeing all kinds of regulatory takings." In Yakima County, says Batts, one growth-management ordinance will take 21,000 acres of private land. But Yakima County planner Steve Erickson says Batts is exaggerating the impact. The 21,000 acres represent less than 1 percent of the land in the county, and much of it is flood plain already governed by federal regulations. These "critical areas" are wetlands, stream corridors, groundwater-recharge areas, and wildlife habitat. The new regulations do not prevent existing farming, but new building projects will require more scrutiny to minimize impact. While the Farm Bureau thinks the new ordinance goes too far, the Yakima Nation challenged an earlier version of the same county ordinance last year for not going far enough. The Yakima Nation is concerned about its treaty rights to salmon and steelhead, which spawn in the county's waterways. The loss of the fish, says Yakima Tribal Council member Lonnie Selam, threatens "the very existence of our culture and our tradition. As we were created here on this Earth, so were those elements and resources to provide for us." The fish are not doing well, and in the last few years the Yakima have voluntarily reduced its take in an effort to restore the population. But taking fewer fish isn't enough. Because development can sterilize a stream, the Yakima asked biologist Scott Nicolai to study growth management in the area. Nicolai found that the county protected only the largest streams. "It missed some very important components, mainly the wetlands and the streams that flow into these big streams," says Nicolai. Arguing that these streams are a critical part of the watershed, the Yakima forced an appeal of the ordinance and won.The takings clause of the Fifth Amendment has played a dramatic role in shaping the human landscape. The right of government to lay roads and rails, to build schools and parks, to zone, and thus to plan communities had to pass constitutional muster before it became a backbone of our civic life. Where we live and work, and thus much of our social, economic, and political lives, is built upon the legal nuances of a sentence fragment. For 200 years the Supreme Court has been charged with balancing the rights of property with the numerous other constitutional rights. Takings proponents threaten that delicate balance with their assertion of the primacy of property over all else. Elevating property rights at a time of spiraling property values, decreasing wages, and subsequent economic disparity, threatens to bring back the political order of 200 years ago, when only property owners could vote. "They are using [takings] compensation as an avenue to deregulate," argues Jerome Ringo of the Louisiana Environmental Action Commission. "And deregulation is going to hurt everyone that drinks the water, everyone that breathes the air." Takings has become a wedge dividing rich and poor, and splitting apart communities. "America is notorious for the notion of rugged individualism -- that your home and your property are sacred," says Ron Judd of the King County Labor Council in Seattle, Washington. Under Washington's takings law, says Judd, "you can either do what you want with your property, at the cost to your neighbors, or we'll pay you to go away. Either way, the community loses, and the individual property owner wins. It's very scary to let our society get into that mindset. It doesn't take an Einstein to think a few moves ahead about how chaotic and how costly that would become."

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