Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, February 18, 1994 TAG: 9402190003
SECTION: EDITORIAL PAGE: A11 EDITION: METRO
SOURCE: JESSICA MATHEWS
DATELINE: LENGTH: Long
Applied so far mostly to environmental legislation, the real takings agenda is not nearly so modest. Libertarian law professor Richard Epstein, the source of this poisonous movement, believes that fully applied, his expansive interpretation of a government taking ``invalidates much of the 20th century legislation,'' including Social Security, the National Labor Relations Act, the minimum wage and most civil rights and welfare laws.
Theory became policy when the Reagan Justice Department saw in Epstein's ideas an opportunity to advance that administration's anti-regulatory goals. According to Reagan's solicitor general, Charles Fried, Attorney General Edwin Meese and his staff ``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 brake upon federal and state regulation.''
The idea was and is to reinterpret the Fifth Amendment so that government would have to compensate property owners not just when it physically took possession of a piece of property for a road or school, but whenever a regulation lowered a property's value. Success would require reversing several decades of Supreme Court rulings, but, as Epstein had seen, the prize would be worth the effort. If government had to pay compensation every time it took an action that lowered the potential value of a business or property, there would be few actions government could take.
By executive order, Reagan required agencies to evaluate the ``takings implications'' of a proposed regulation before acting. Though not yet rescinded by the Clinton administration, it has been largely ignored, partly because agencies regard it as ideologically driven nonsense and partly because it is impossible to tell what the takings effect of an action will be on millions of individual cases. Now, though, there are efforts to turn the executive order into law.
The takings idea also has been snapped up by the spectacularly misnamed Wise Use movement, a Western anti-environmental group financed by mining, logging, oil and gas and commercial-development interests. The movement's less radical, and therefore more dangerous goal, is to attach takings amendments to every resource-management bill.
Cloaked in the star-spangled banner of protecting property rights, these amendments have attracted wide support. The threat that one will pass has slowed or derailed every major piece of environmental legislation during the past year, contributing, most recently, to the unexpected defeat of a long overdue measure to elevate the Environmental Protection Agency to departmental status. Does the government want to protect wetlands, clean up the water, regulate mining or preserve endangered species? Fine, say proponents of the Wise Use movement, but if it does it must pay anyone whose land or business is affected. Is this anti-environment? Dear me, no, just protecting the ``little guy.''
Where this leads is to the end of government's role as protector of the little guy and provider of amenities the market alone cannot provide, little things like public health, worker safety, civil rights, environment, planning, historic preservation and anti-discrimination measures. Actions to remove lead from housing, adopt rent control, clean up toxic-waste dumps, require set-asides for minority contractors, forbid a fast-food joint in a historic district, require doctors to accept Medicaid payments at less than the market rate or plain old zoning laws would all be subject to takings claims.
The premise seems to be that the individual produces while the government just takes away. One claim involved a South Carolina decision that forbade someone from building on a piece of beach. The owner argued that the regulation deprived him of the $1 million value of the property. Why was it worth so much? Because the federal government had built Interstate 95 down the coast, because of federal flood insurance (without which no one would dream of building in such a place), because government paid for sewer lines, built bridges, dredged harbors and replenished eroding beaches. Without all that, the property would have been worthless.
Perhaps, then, property owners should pay every time a government action raises the value of their property. It makes just as little sense.
The takings movement isn't about property rights. They are still well-defended by the courts. Nor is the ``little guy'' more than convenient political camouflage. It is, in part, about arrogant, blundering bureaucracies that appear at every level of government and whose behavior should be fixed - but not with a meat ax. It is also, in part, about environmental and other regulations that have overreached. They should also be fixed - but individually, on the merits.
The takings movement has profited from too little public attention. Off in the wings it seems like an easy way to satisfy some noisy interests. In the glare of the spotlight it will be seen for what it is - a shortsighted, dangerous, back-door attack on the means that allow us as neighbors, towns, states or a nation to live and compete in reasonable harmony.
\ Jessica Mathews is a senior fellow at the Council on Foreign Relations.
\ The Washington Post
by CNB