Fresh Set of Green Laws Causes Some to See Red

Article excerpt

With a Democrat in the White House, an ecofriendly vice president guiding policy and a corps of former ecolobbyists in high places, environmentalists were poised to make the most of Clinton's presidency. Instead, the green movement is seeing red because of another interest group -- America's landholders.

Fed up after years of losing control of their land to environmental laws that protect swamps, snail darters, spotted owls and gnatcatchers, America's corporate real estate holders, landed gentry and even small-scale landowners are fighting back. "I call it 'Tea Party' time in America," says Rep. W.J. "Billy" Tauzin, a Democrat from Louisiana, referring to America's best-known act of protest against regulatory excess.

The focus of property-rights battles has shifted from federal lands to private property, and many advocates say that the price of environmental protection is unconstitutionally high. According to Tauzin, property rights "disturbed the Founding Fathers enough for them to put it in the Constitution: the right to enjoy the use of private property without the government coming in and taking it from you."

Shortly before the July recess, Tauzin launched a drive to force a floor vote on the proposed Property Owners Bill of Rights, a measure that would make government compensate owners whose property values decline by 50 percent or more because of federal regulations. Already, the bill has 156 cosponsors; only 90 more signatures are necessary to force a vote.

Tauzin's move comes on the heels of a Supreme Court ruling in favor of an Oregon woman's property rights. (See "Property Ruling Is Twice Blessed," Aug. 8.) The court overturned a lowercourt ruling that upheld a government order requiring the woman to build a bike path and donate property for a public greenway in exchange for permission to expand her plumbing store. "This decision sends a strong message to local governments that they simply cannot bully property owners into handing over their land," says Nancie G. Marzulla, president and chief counsel to Defenders of Property Rights, a Washington group that challenges regulatory excess. She claims the backlash is fueled by environmentalists' insistence on changing people's lifestyles. "Had they been satisfied with the gains of the last 20 years, there wouldn't be a problem. They've gone beyond environmental consciousness to land-use planning and land-use control."

But environmentalists say the property-rights movement's goals are misplaced and that, while it appears to be a grassroots movement, it is actually a well-heeled offshoot of corporate America. And they have begun to fight back. A coalition of 15 major environmental groups is urging its members to steer Congress away from legislation it says would reverse hard-won gains. Groups including the Sierra Club, Friends of the Earth and the Wilderness Society sent a letter on July 6 to 400,000 activists warning, "Congress is hearing more from special interest groups who profit from pollution and from exploiting public lands and resources than from the majority of Americans who want to end pollution and protect our natural resources." Just before Congress recessed, 100 environmental-law scholars signed a letter urging lawmakers to reject the Tauzin amendment, saying provisions to mandate compensation are "flawed caricatures of constitutional rules."

Nan Arons, executive director of the Alliance for Justice, the umbrella organization of public-interest law firms behind the letter, says the property-rights movement employs "exaggerated anecdotes." Says Arons: "No one in the public-interest community opposes the right of people to own and defend their property. But these folks use takings and the property-rights movement as a way to dismantle some of the most important public-health protections that exist."

Much of the disagreement between environmentalists and property-rights proponents centers around provisions of two federal programs. …