Property Rights in the Defence of Nature / Property Matters / Property Rights: Understanding Government Takings and Environmental Regulation

Article excerpt

Property Rights in the Defence of Nature

by Elizabeth Brubaker

Earthscan 1995 a 328 pages with index no price stated

Property Matters by James V DeLong

The Free Press 1997 390 pages with index $27.50

Property Rights: Understanding Government Takings and Environmental Regulation

by Nancie G. Marzulla and Roger J. Marzulla

Government Institutes 1997 325 pages with index $79.00

It has now been almost three decades since the beginning of the federal environmental misadventure, a period that saw the rise of the regulatory state and the erosion of privateproperty rights. During this time, federal statutes, regulations, and centralized control have systematically replaced a diverse mix of decentralized common-law rules, state statutes, and local ordinances, along with customs and traditions that previously protected property rights. With the federal takeover, the rule of law, which is based on protection of property rights, was replaced by the rule of politics, which respects few property-rights boundaries.

Fueled by a combination of environmental hysteria, political opportunism, and efforts by some industries to raise rivals' costs and block competitive entry, the environmental juggernaut first provoked outcries from firms and municipalities that bore heavy environmental costs. Speaking indirectly for their customers, auto companies, steel producers, and a host of other manufacturers called for special relief, and in some cases got it. Municipalities and state governments asked for federal money to pay for mandated improvements; the money valves were opened. Until recently, hardly anything was heard from ordinary Americans-the farmers, ranchers, homebuilders, countless operators of small businesses, and just plain citizens who head off to work each day. Diverse and unorganized, these citizens hardly understood why some major manufacturers were so upset about environmental regulation. After all, protecting the environment made good sense, especially when someone else seemed to be footing the bill.

But as the environmental steamroller made its mark, ordinary Americans were pulled into the fray. For many of them, the issue was a simple one: their property rights were being taken by regulation. It was happening in the name of wetlands protection, saving endangered-species habitat, preserving historic corridors, and enhancing national landmarks situated near their homes.

Across the nation, many people came to realize that they were bearing the cost of providing public benefits, and contrary to the Constitution, they were not being compensated when their property was taken for public use. The resulting public outcry spawned hundreds of grassroots property-rights organizations, and eventually generated a struggle nationwide to protect private property.

Significant parts of this struggle are recounted in three important books. Elizabeth Brubaker's Property Rights in Defence of Nature addresses the Canadian experience and emphasizes the important role played by traditional private-property rights in protecting environmental quality. Brubaker's book focuses on the common law. But much more than a primer on nuisance and trespass, this highly readable and heavily documented volume convincingly demonstrates the power of common law-the law of the people-to protect environmental rights. Replete with case-law vignettes, the book shows how air and water pollution was countered by common-law rules, how defense of property rights in trout held by fishing clubs overcame the polluting tendencies of cities and industries, and how, in many cases, common-law remedies were harsher and the rules stricter than those that came with statutes and regulation. …