August 21, 2006

KUFM / KGPR

T. M. Power

 

“Protecting Our Homes” or Protecting Polluters and Developers: I-154

 

            When Montana voters signed petitions to put Initiative 154 on the November ballot, they were told that the initiative was intended to “protect our homes” and stop the government from “taking our land.”  The pitch from the paid signature collectors was that the US Supreme Court had recently authorized state and local governments to confiscate private citizens’ homes and turn them over to other private citizens and businesses who happen to want that property. Something had to be done to stop such outrageous government abuse of people’s property rights.

            That, of course, is not what I-154 is all about. Not surprisingly, since it was bankrolled by a New York real estate mogul, I-154 is primarily focused on prohibiting state and local governments from trying to protect neighborhoods and communities from the congestion, pollution, and degradation that can go with uncontrolled growth and sprawl. Perversely, I-154 actually authorizes the continuation of the historical use of eminent domain by governments to help private companies like electric and natural gas utilities, transportation companies, mines, and smelters by condemning peoples’ lands and turning it over to those private companies. That practice has infuriated far more people in Montana than condemnations for urban renewal. Yet that can continue under I-154.

            Equally strange is the conservative, pro-corporate attack on state and local governments’ condemnation of lands for urban renewal and economic development purposes.  Modern environmental legislation came into being because conservative courts began systematically overruling a property owners’ ability to sue to protect their property from the pollution and degradation associated with industrial development. Under English Common Law the right to the “quiet enjoyment” of your property and the right to sue to stop “nuisances” that interfered with that right are as old as property rights themselves. Yet American courts, beginning in the mid-19th century, began ruling that the wealth created by industrialization was far more important that a property owner’s right to protect their property from air, water, noise, waste disposal, and other noxious impacts of industrial activity. It was the pro-business courts’ emphasis on the primacy of economic development over citizens’ property rights that led to specific statutes declaring certain types and levels of pollution to be illegal. 

            Now people who claim to be property rights advocates are seeking to undermine most environmental regulation, turning the clock back to the “good old days” when one property owner could damage all other property owners and there was nothing you could do about it except to pay the one doing the damage to stop it.  If someone wants to put a gravel pit on their land in the middle of your neighborhood or raise thousands of pigs or open a motorcycle race course, you cannot object, no matter what it does to the usefulness or value of your own property.  All you can do is bribe the person into not doing the damage. That is like always carrying extra cash around so that you can pay muggers not to beat you up. Probably not good social policy!

            I-154 appears to limit government regulation to public health and safety, sexually-oriented businesses, junk yards, and criminal activity.  Any new government regulations aimed at protecting people from air and water pollution that merely gag you but do not make you sick, noise, congestion, massive ugliness, or any government regulations that seek to protect the livability of a place cannot proceed without first paying off all those property owners who claim that they want to use their property in obnoxious ways.

            Actually, I-154 may not provide any exceptions, even for health and safety, to the need to compensate all property owners who feel they have been constrained by regulation in the use of their property. The initiative states flatly that: “If the right to use, divide, possess, sell or improve real property is directly impaired by a government regulation … the owner of the property shall be entitled to just compensation.”  That is pretty sweeping.

            All of this posturing about property rights is intended to confuse. Most environmental regulation is not about simply limiting property rights. It is about figuring out how to balance property rights when people live in densely settled urban areas and make use of technologies that have widespread impacts. In that setting one person’s use of their property has an impact on the value and usefulness of another person’s property. How, then, do we decide whose property right should trump whose?  Talking about this as if we all live in a Daniel Boone world where we cannot see or hear our neighbors and we primarily rely on human and animal muscle-power to get things done is not helpful today in resolving conflicts between people as they engage in economic activity, whether is its production or consumption.

            Once we began living on top of one another and deploying technologies that had widespread impacts far beyond our property boundaries, such simple-minded banter about property rights became simply a cover to grant privilege to a few to damage the property and lives of the many. That is what I-154 is all about: granting super-property rights to a few, no matter what the cost to the rest of us. Do we really want to go back to the “good old days” of Charles Dickens’s 19th century industrial squalor? That is the brave new world of super-property rights we are being offered by the secretive folks who are bankrolling I-154.