A Question of Property Rights and Wrongs

By Harbrecht, Doug | National Wildlife, October-November 1994 | Go to article overview
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A Question of Property Rights and Wrongs

Harbrecht, Doug, National Wildlife

Do Americans really want their neighbors to be able to do whatever they want with their land?

The nation's largest estuary, Chesapeake Bay is a crown jewel of the East Coast ringed by wetlands, towns, farms and industry. Without its environmental laws, the region's already suffering health would be even more at the mercy of each landowner's own decisions.

Ralph Seidel's livelihood depends on the clean waters of Natrona Creek in rural Pratt County, Kansas where he owns a golf course, a private fishing resort and a trailer park. But for more than two decades starting in the late 1960s, neighboring cattle outfit Pratt Feeders dumped live stock wastes into the creek, causing repeated fish kills, according to state environmental officials. When the company pollution-control permits came up for renewal a few years ago, Seidel organize a public uprising that led to state change in Pratt Feeders' permits requiring more stringent treatment of its waste water.

Seidel's property rights, not Pratt's were the issue. "That's what `property rights' has always meant for conservationists: protections for average Americans and their property," says National Wildlife Federation attorney Glenn Sugameli. But a new property-rights movement is afoot, one that could lead polluters like Pratt Feeders to claim loss of their property rights through regulations. All over the country, ranchers, developers, mining companies and others are charging that property owners should b "compensated" if obeying the law lower the value of private property or results less-than-anticipated corporate profit.

The notion may seem absurd. "The whole idea that the government needs to pay people not to do bad things is ridiculous," says John Humbach, a property-rights expert at Pace University. "The reason the government exists in the first place is to define what is for the common good and what's not."

Absurd or not, the movement has be come a political force to be reckon with, linked as it is to the powerful notion that landowners should be allowed to do what they want with their property. "People better start taking this movement seriously," says Robert Meltz, a property law expert at the Congressional Research Service. "This isn't just some fringe element anymore." The proof can be found in Congress, where proposed property rights amendments are delaying nearly al major environmental legislation.

The new movement has the potential to disrupt a delicate balance between private greed and public need forged over two centuries of U.S. property law, legal experts say. The outcome will affect the survival of endangered wildlife, and it threatens not only environmental protections like pollution laws, but also zoning regulations and even obscenity laws. "Extremists are trying to take away the ability of Americans to act through their government to protect neighboring private-property owners and the public welfare," says NWF's Sugameli.

In Congress, property-rights debates have held up renewal of the Endangered Species Act, originally slated for 1993, and reauthorization of the Clean Water Act. Property-rights issues have also helped hold up bills to reform the Mining Law of 1872, elevate the Environmental Protection Agency to Cabinet status and reauthorize the Safe Drinking Water Act. The delays are due in large part to property-rights lobbying for amendments such as a ban on volunteers collecting data on private land for the National Biological Survey or a requirement that the government do "loss-of-value" assessments when regulations "could" cause a change in the worth of private property ranging from land to stocks and bonds.

At the state level, "takings" bills similar to those in Congress have been introduced in 37 state legislatures in the past two years; nearly all have been defeated. Many of the bills would require taxpayers to "compensate" landowners, including corporations, for property values diminished because of regulation.

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