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- ENVIRONMENT, Page 52Demanding Payment for Good Behavior
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- Advocates for the wise use movement have come up with some
- pretty loopy ideas -- among them, a scientifically silly
- proposal to halt global warming by clear-cutting ancient
- forests. But one of their radical notions has been getting a
- friendly hearing from the courts, Congress and the Bush
- Administration. The idea, which could ultimately cost state and
- federal governments billions, is that private landowners are
- constitutionally entitled to compensation when a government
- imposes environmental restrictions on how their land may be
- used. Citing the clause in the Fifth Amendment that bars the
- government from taking private property "without just
- compensation," scores of landowners and developers are now
- seeking remuneration.
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- In the past, the Supreme Court has rejected these pleas.
- But it may reconsider the issue this spring when it takes up
- the case of Lucas v. South Carolina Coastal Council. Real
- estate developer David Lucas bought two lots on the Isle of
- Palms in 1986 with the intention of building houses on them. Two
- years later, new state regulations proscribed building so close
- to the ocean. Lucas did not challenge the state's claim that
- beachside construction would cause erosion and threaten the
- stability of nearby homes, but he did seek compensation for his
- investment. A lower court awarded him $1,232,387.50, the price
- he paid for the land plus interest and taxes. The state
- successfully appealed, arguing that its regulations did not
- amount to depriving the developer of his land.
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- It is easy to sympathize with Lucas, though land values
- can also be enhanced by environmental and zoning restrictions.
- But a broad decision by the Supreme Court would be disastrous
- for the principle of environmental regulation. It would open
- the door to a wave of demands for compensation from citizens
- and companies affected by everything from rules protecting
- wetlands to restrictions on critical habitats for endangered
- species.
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- A decision in favor of property rights could leave state
- governments with a double bind, says Brian Gray, a University
- of California specialist in environmental and property law. If
- the state imposes new regulations to protect vital ecosystems
- or species, it risks a slew of suits for compensation; but if
- it does not act, it could be sued for failing to protect the
- public trust.
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- And where is the Bush Administration during this threat to
- the principle of environmental regulation? It has sided with
- Lucas. Some conservative legal theorists and their supporters
- within the Administration would welcome a reinterpretation of
- property rights that would also open the way to eviscerating
- health, safety and zoning as well as environmental regulations.
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- This reassertion of private-property rights comes at a
- time when society is becoming ever more aware of the ways in
- which actions in one part of the landscape affect the economic
- and ecological well-being of other areas. If the U.S. were
- still a sparsely populated country with vast wilderness areas,
- it would matter less what one individual did with his or her
- property. Says Erik Meyers of the Environmental Law Institute:
- "The freedom to swing your arms stops at your neighbor's nose,
- and what has happened is that noses have got a lot closer
- together." In such circumstances, it seems odd to pay people to
- pull their punches.
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- -- By Eugene Linden
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