By Donella Meadows
–March 19, 1992–
“What difference does it make, whether my land is taken away from me by a Czar or by the State of South Carolina?” asks an incensed developer.
His land was in fact not taken away, but his development plans were, by a regulation against building on an erosive beach. He is suing the state for violating the “taking clause” of the Fifth Amendment — “nor shall private property be taken for public use without just compensation.” Because he can’t develop, his property value was reduced, he claims, and he should get paid for it. His case is now before the Supreme Court.
More than fifty other takings suits were filed last year in the U.S. Federal Claims Court. That court, now dominated by ultra-conservative judges appointed over the past 12 years, has already shown remarkable sympathy to landowners whose great expectations have been stymied by environmental laws. A coal company was awarded $150 million by claiming a taking when a regulation barred strip mining in a protected area. A Florida limestone company was prevented from mining 98 of its 1560 acres near Miami, because the mining would pollute the region’s groundwater. The company won more than $1 million. A New Jersey developer was barred by the Army Corps of Engineers from building on 12.5 acres of wetland, the last undeveloped piece of a 250-acre parcel he bought in 1956 for $300,000. He was granted almost $3 million.
Takings are being claimed by industries having to clean up toxic wastes, farmers having to desist from spraying groundwater-contaminating pesticides, logging companies required to leave uncut habitat for an endangered species, shrimp fishermen having to include “turtle excluders” in their nets. There is hardly an environmental law that is not now being challenged as a taking.
The U.S. courts have seen a long history of taking claims. Slaveholders tried for compensation when the Emancipation Proclamation freed their slaves. Brewers saw Prohibition as a taking, and in the 1930s companies sought compensation for losses induced by child labor laws, minimum wage laws, and occupational health laws. Developers have claimed taking again and again to fight zoning regulations. In all these cases courts have upheld the government’s right to protect the public good against private actions that cause harm to others. It is not a Fifth Amendment freedom, the legal tradition says, for government to pay you to stop doing something you should not do.
The new taking cases are part of an orchestrated attempt to undermine environmental laws. The litigants form a loose coalition that goes by such names as the “Wise Use” Movement and Alliance for America. Behind these names stand a number of timber, mining, and oil companies, large-scale ranchers and developers, makers of off-road vehicles, such as Honda and Kawasaki, and followers of the Rev. Sun Myung Moon. They are trying to establish the principle that individuals and corporations should have the right to do anything they like with their own land, and also the right to do anything they like with OUR land — the public lands.
The “Wise Use” people are more than happy to profit from government actions that CREATE property value. You don’t hear them offering to share the gains when taxpayer-funded roads or sewer lines or protected areas INCREASE the value of their holdings.
They oppose attempts to raise the prices of grazing, mining, or logging rights on public land to market values. They do not want to be regulated against building on beaches or floodplains, but they claim public disaster relief when the inevitable disaster occurs. They offer to pay no damages when they strip a forest hillside of trees, sending tons of eroded silt downstream to fill up dams, clog irrigation channels, bury salmon spawning areas. They don’t see a taking when they create great gouges in the ground, pile up mine tailings, and cause acid runoff that poisons every stream running through their land.
What’s mine is mine and what’s yours is mine too. I want to be protected against anything you do to me, but I have a right to do anything I want to you. That is the underlying philosophy of the cases now coming to the courts. Please reward us for our lack of responsibility.
It is a vicious philosophy, a mindless anti-governmental ideology that lacks symmetry, breaks down community and, at its extreme, takes us back to a primitive, unregulated state of war of all against all. Given the legal tradition of this country, there shouldn’t be a chance of these cases succeeding. But the past twelve years of far-right-wing influence in government have packed the courts with believers in the same ideology.
The taking clause of the Fifth Amendment is absolutely necessary to defend property owners against the overwhelming and often arbitrary power of the government. But regulations are also needed to protect neighbors, communities, and the public as a whole, against short-sighted, destructive behavior of property owners. What is required, clearly, is a fair and delicate balance between the public and the private good.
Fair and delicate balances do not come from extremists or ideologues. If you wonder whether this year’s election makes any difference, the fairness of the courts is one of the big differences it will make.
Copyright Sustainability Institute 1992
