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By B.J. Bergman
In his final year as president, with the media spotlight trained on the race to succeed
him, Ronald Reagan in March 1988 signed Executive Order 12630.
The germ spread quickly. Six years later, its offshoots in Congress and state
legislatures across America--and the virulent anti-regulatory dogma that fuels them--pose
a major threat to the health of the nation's environment.
Today the epidemic has a name--the "takings" campaign.
Reagan's ides-of-March directive was deceptively simple. The order called on federal
agencies to assess the "takings implications'' of proposed policies and actions. The
object, it said. was to protect the rights of property owners under the Fifth Amendment,
which states: ". . . nor shall government take private property for public use
without just compensation."
One of the president's men, at least, saw a more malign motive.
Charles Fried, solicitor general in the Reagan Justice Department, later wrote that
then-Attorney General Ed Meese and company "had a specific, aggressive and, it seemed
to me, quite radical project in mind: to use the takings clause of the Fifth Amendment as
a severe break upon federal and state regulation of business and property."
Increasingly, that "radical project" is finding its way into the
mainstream--weakening and sometimes killing green legislation, often without serious
resistance from the environment's traditional allies on Capitol Hill.
"The other side has managed to sell these reckless bins as 'private property
rights' provisions," said Bruce Hamilton, the Sierra Club's conservation director
"But their real aim is to boost polluters' profits on the backs of U.S. taxpayers.
The price--in terms of public health, public safety and public lands--would be disastrous.
"Environmentalists' biggest challenge right now," Hamilton said, is to get
the truth out to the American people and those they elect to serve them: These bids are
anti-environment, anti-taxpayer, anti-public and anti-democratic.
"Takings bills represent an all-out assault on the environment. Unless we can make
that clear to Congress and state legislatures, our entire agenda--as well as the body of
existing law--is at risk."
Fronted by anti-environmental extremist "wise users"--and backed by
well-heeled industry lobbies like the American Petroleum Institute, the American Farm
Bureau and the National Coal Association-so-called takings advocates have found powerful
friends in Washington, D.C., and in dozens of state capitals.
Sen. Bob Dole (R-Kan.), for example, persuaded the Senate m May to tack takings
language onto its reauthorization of the Safe Drinking Water Act. The minority leader's
amendment, in slightly modified form, was ultimately promoted by She Democratic leadership
of the Senate. It would require that before the federal government takes my action or
issues any regulation, it must first conduct an analysis of possible takings implications.
In the House, Rep. Billy Tauzin (D-La.) and others are poised to amend the Clean Water
Act to require compensation to anyone barred from developing a wetland by the act's
Section 404, which aims to preserve this fast-vanishing resource. Anytime limits on
development lower a private wetland's financial value by half, takings advocates maintain,
taxpayers should cough up the difference.
Besides lobbing "takings grenades" at key environmental legislation--an
increasingly popular tactic--Dole and Tauzin both are pushing stand-alone bills named,
respectively, "The Private Property Owners Act" and "The Private Property
Owners Bill of Rights."
Their efforts reflect the two broad types of takings measures cropping up in Congress
and state legislatures.
"Assessment" provisions, modeled on Reagan's executive order, would subject
virtually all government actions to costly, bureaucratic reviews of their supposed takings
implications.
"Compensation" provisions, the kind favored by Tauzin, require payment
whenever government actions may limit landholders' future development of their
property--even when, as in the case of wetlands, such action is needed to preserve a vital
ecological resource.
But all takings measures, environmentalists agree, have a single purpose: to turn back
the clock on decades of public-interest protections--from the environment to civil
rights--deemed inconvenient by a handful of private interests.
Paula Carrell, the Sierra Club's state program coordinator, said takings bills would
result in more bureaucracy, radically higher costs and long, even fatal delays in
implementing measures to protect public health and safety.
"The real irony here, Carrell said, "is that these expensive bills would not
result in any increased protections for private property. They would, however, force
states to abandon their environmental and public health and safety programs. And that's
precisely what takings advocates really want."
The same is true for federal bills and amendments, added Debbie Sease, the Club's
legislative director.
"Of course the Sierra Club supports property rights. But protecting property has
nothing to do with it," she said.
"What about the public's property, which these industries are plundering to
inflate their own bottom lines? What about the rights of adjacent homeowners, whose
property values--not to mention their quality of life--are lowered by air and water
pollution, and whose houses suffer flooding damage when some developer paves over a
wetland."
Many observers, in fact, believe takings measures would jettison a wide variety of
hard-won rights and protections--including civil rights, residential zoning and employee
safety laws--while creating a new "right" of industry to behave irresponsibly in
pursuit of unfettered profits.
"What environmentalists want is for miners, developers, ranchers and other
industries to be good neighbors," noted Sease.
"What takers want," she said, "is special privileges for
polluters."
One case in point: the mining industry. Under the 1872 Mining Law, multi-national
mining firms have gladly taken billions of dollars in taxpayer subsidies--claiming
mineral-rich federal land for a few dollars an acre, then reaping huge profits without
paying even a token royalty to the U.S. Treasury.
Like many of those most vocal about "takings" of privately owned property,
the mining industry adamantly opposes legislative efforts to redress such giveaways of
publicly owned land.
Instead, activists say, takings bills--by establishing a corporate "right to
pollute"--would not only hold the environment hostage, but bestow a ransom on
industries that refuse to comply voluntarily with environmental laws.
"In effect," said Hamilton, "we'd be forced to pay polluters not to
pollute." Hamilton and other Club leaders--as well as activists throughout the
environmental movement--agree that defeating the takings campaign is a top priority.
"Takings threatens everything we're working for," warned Joni Bosh, a member
of the Club's Board of Directors and a resident of Arizona, which passed a takings bill in
1992. Activists in Arizona waged a successful campaign to place the law on this November's
ballot, and are spearheading efforts to repeal it.
"Whatever concerns you as an activist, from public lands to toxic pollution, from
local issues to national ones, is at risk from takings," said Bosh. "We're
playing defense right now. In order to regain our momentum, we first have to stop the
takings campaign."
Like many Club leaders, Bosh believes the tide is beginning to turn. But all caution it
will take a concerted effort to wipe out the takings threat."
At least 40 states have considered takings bills, but the vast majority have had the
good sense not to pass them," Bosh said. "We've defeated this time and again.
We've been educating the public, and building information and lobbying networks with
larger, more diverse coalitions than ever before.
"Now," said Bosh, "it's crucial that we pull together to turn back
takings. It's time to go back on the offensive, and get back to the business of saving the
environment."
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