Protecting Private Property Rights Won't Destroy the Environment

Commentary by H. Sterling Burnett

What could be wrong with a bill that promotes environmental protection, preserves a fundamental civil right and does so at minimal, if any, additional cost to the government? Plenty, according to some environmental extremists, most members of the Senate Democratic minority and the Clinton Administration.

The Senate will vote soon on "The Omnibus Property Rights Act of 1995" (S.605), a bill that has been decried by critics as a radical assault on federal health and environmental protection laws. They have claimed that the law would make it virtually impossible for the government to protect endangered species or halt wetland losses. These claims are nonsense and their proponents know it.

The Property Rights Act would help property owners defend their rights by making it easier for them to get justice in federal courts. Under current law, if regulators deny a property owner the right to build his dream home because it would fill in a wetland, he has two options. He could can sue in court to get the denial overturned so that he can build (called equitable relief). Or he can sue to receive compensation for the value lost because he can't build. But he can't do both in the same court. This act would allow certain federal courts to hear both types of suits.

Often, the property owner gets neither relief nor compensation. In a "Catch-22," the government will urge the federal district court to dismiss a plaintiff's claim for equitable relief on the grounds that he should seek compensation in a federal claims court. At the same time, it will urge the federal claims court to dismiss his claim for compensation on the grounds that he should seek equitable relief in a federal district court. Having one court hear both types of claims would stop this practice.

S. 605 also requires that agencies conduct a "Taking Impact Analysis" prior to acting, to assess the probability that the action will take private property and require compensating the owners. The analysis would estimate the potential liability of the government and examine alternatives to the proposed action that might achieve the same goal with less impact on property owners.

The section of S. 605 causing the most contention mandates that when an environmental law, such as the Endangered Species Act or the wetlands section of the Clean Water Act, reduces the value of a portion of a person's property by 33 percent or more, the government must compensate the property owner for his loss. Is it radical to require that if the public wants something, it should pay for it? Apparently many environmentalists and the Clinton Administration think so. On this point, they are in the minority. Polls show that by a wide margin the public believes property owners should be compensated when their property is taken or its uses restricted to promote a healthy environment.

However, regardless of public opinion or environmentalists' desires, the principle is enshrined in the Fifth Amendment to the Constitution. As the Supreme Court ruled in 1960, "[The purpose of the Fifth Amendment to the Constitution] is to bar Government from forcing some people alone to bear public burdens, which in all fairness and justice should be borne by the public as a whole. . .." Indeed, the compensation portion of S. 605 was written to clarify recent court rulings upholding this principle.

More importantly, perhaps, Republican efforts to clarify when compensation is due go a long way toward removing the negative incentives inherent in many environmental laws. Numerous wetlands are on private land, and more than 75 percent of the endangered species depend on private land for all or part of their habitats. Yet current laws create perverse incentives that discourage people from creating, enhancing or preserving wetlands or species habitat. For instance, if a person provides suitable habitat for endangered species, his land becomes subject to severe regulation if not outright confiscation. Tragically, there is mounting evidence that fear of government regulation is driving landowners to destroy potential habitat for endangered species to avoid attracting them. Since the property rights bill will compensate landowners for losses incurred due to environmental restrictions, they will no longer be forced to choose between their welfare and environmental health. Protecting the environment will no longer be a loser's game.

The Congressional Budget Office has concluded that S. 605 would cost little (e.g. due to lower litigation costs). With all of its benefits, it is hard to understand why environmentalists and their Democrat allies are so opposed to the bill. One can only surmise that their resistance has more to do with fearmongering, fundraising and jockeying for political position than with the noble goal of improving the environment.

This appeared as an op-ed in The Washington Times, June 19, 1996.