Legal Assault on the Environment: 'Property Rights' Movement

By Helvarg, David | The Nation, January 30, 1995 | Go to article overview

Legal Assault on the Environment: 'Property Rights' Movement


Helvarg, David, The Nation


More than twenty years after Supreme Court Justice William O. Douglas helped expand the theory and practice of law by arguing that elements of nature and its "environmental wonders" were entitled to be represented in court, his legacy is under unprecedented legislative and judicial attack.

While Newt Gingrich's Contract With America makes no direct reference to the environment, it includes an antienvironmental poison pill hidden in the misnamed Job Creation and Wage Enhancement Act.

Among the act's features is a requirement that the government financially compensate property owners for any federal regulation that reduces the value of a business or property by 10 percent or more. This compensation plan is one of several attempts by the "property rights" wing of the anti-environmental backlash to use a radical reinterpretation of the Fifth Amendment to gut a generation of environmental laws and land-use reforms. When most Americans think of the Fifth Amendment they tend to think of that clause that protects an individual against self-incrimination. But the Fifth also states, "No person shall be ... deprived of life, liberty or property without due process of law; now shall private property be taken for public use without just compensation." Today when the government condemns land in order to build a highway or a commercial airport, the Fifth Amendment guarantees that the owner is paid market value for his or her lost property.

Developers and property owners are arguing that any protection of nature that affects the dollar value of real estate is a "taking" that must be financially compensated for by the government. The instigators of these efforts figure that such treasury-busting compensation would quickly lead to the dismantiling of broadly popular environmental laws like the Clean Air, Clean Water and Endangered Species acts.

Last June the Supreme Court provided the anti-enviros with a crucial victory by limiting local governments' ability to make developers set aside environmental easements under the land-use permitting process. In Dolan v. City of Tigard, the owner of a chain of plumbing supply stores outside Portland, Oregon, filed a "takings" suit when told she couldn't expand one of her stores and pave its parking lot unless she compensated for the added traffic and runoff by dedicating the floodplain portion of the property (about 10 percent) to a storm-drain and pedestrian pathway. In its 5-to-4 decision the High Court ruled that the city-ordered easement was out of proportion to the project's size. More significantly, the Court shifted the burden of proof for demonstrating environmental harm to local governments. Until last summer's decision the landowners had to prove that a land-use regulation they disagreed with would remove substantially all economic value from their property before it could be considered a taking.

Leading property rights activists, including corporate farmers, resource industry lobbyists and conservative politicians who are members of the American Legislative Exchange Council (ALEC), were quick to hail the Court's decision as a major victory in their struggle. "Property rights will be the civil rights movement of the nineties," promises Michael Greve, executive director of the Washington-based Center for Individual Rights, one of a network of right-wing think tanks that have historically opposed civil rights legislation for minorities and women.

Property rights theorists see the Dolan decision as a small step in what they believe will be the eventual dismantling of all government restrictions on real estate and industry. They hope to use the "takings" clause of the Fifth Amendment to "get rid of the regulatory state established under F.D.R.'s New Deal," according to Jim Burling, an attorney with the Pacific Legal Foundation, one of a network of twenty-two nonprofit pro-business law firms, coordinated through the ultraconservative Heritage Foundation, that collectively provide the legal muscle behind the property rights movement. …

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