By Rauber, Paul
Sierra , Vol. 77, No. 3
In re Supreme Court vs. the Environment
Now that the final conflict is over, capitalism triumphant is getting down to business here at home. In the next few months, the United States Supreme Court will decide whether the sanctity of private property outweighs the government's authority to protect the environment. Of course, property-rights advocates wouldn't put it that way: Sure, they say, the government can continue to enact laws protecting fragile wetlands, endangered species, imperiled coastal areas, whatever it wants--it just has to be prepared to pay landowners top dollar not to despoil their properties.
Even before the high court rules, lower courts are already putting property first. A New Jersey company was awarded $2.68 million because it was refused permission to build houses on 12 acres of wetlands. A mining firm in Florida received $1 million compensation for not polluting groundwater. And when the Interior Department refused to allow a strip mine in Wyoming, it was ordered to pay the company $150 million.
"There is a revolution going on that almost no one knows about," warns Stanford law professor Robert Girard, "one that is going to cripple the environmental movement." The manifesto of these revolutionaries--conservative legal scholars, right-wing think tanks, and "wise use" anti-environmental activists--is the "takings clause" of the Fifth Amendment: "Nor shall private property be taken for public use, without just compensation."
For the past 200 years this clause has been employed largely in cases where government bodies have physically taken private land in order to build
highways, parks, or other public works. (It was also invoked--unsuccessfully--in an attempt to gain compensation for plantation owners and industrialists who claimed that slavery and child labor were "taken" from them.) Now, asserts the new legal theory, "takings" may occur through land-use regulation alone. If the government forbids the owner of a wetland from filling it in and building a mall on it, the theory goes, the property has effectively been "taken," and the state must buy it from the owner at market rate.
Only a few short years ago, adherence to such an extreme view of property rights was considered wacky enough to disqualify candidates for the federal bench. Now, after 12 years of conservative judicial appointments by Ronald Reagan and George Bush, property rights threaten to replace civil rights as the main focus of the Supreme Court. Both Chief Justice William Rehnquist and Associate Justice Antonin Scalia are ardent proponents of expanded property rights, as is, apparently, Clarence Thomas. Sadly lost amid the later hubbub of sexual harassment charges against Thomas last November was what Senate Judiciary Committee Chair Joseph Biden called "the single most important question you can be asked in this entire hearing"--whether the nominee stood by his earlier statements praising the "judicial activism" of courts that promoted this new view of private-property rights.
While Thomas refused to answer Biden's question in detail, his views on the matter will be known soon enough when the court rules on the case of South Carolina developer David Lucas. In 1986, Lucas bought two beachfront lots on the Isle of Palms, a barrier island off the coast of South Carolina, for $975,000. …