DATE: Friday, April 4, 1997                 TAG: 9704040010

SECTION: LOCAL                   PAGE: B11  EDITION: FINAL 

TYPE: Opinion 

SOURCE: Keith Monroe 

                                            LENGTH:   84 lines

WHITTLING AWAY AT LAWS

The environmental pendulum is swinging. Beginning in the 1960s, protecting the environment became a serious issue - as well as a trendy pastime. Laws were passed, the EPA was created, Earth had a day and some egregious pollution was stopped. For some time, however, the pendulum has been arcing in the other direction.

Clearly, humankind has it in its power to degrade the earth, air and water on which life depends. Not a good idea. The consciousness-raising was necessary and those whose memories don't go back several decades don't know how much dirtier the world once was.

When I grew up in the rust belt, pollution was not deplorable. It was a source of pride and symbol of prosperity. Could you practically taste air thick with iron filings and acids? Did the blast furnaces light up the night sky and blot out the stars? Did the waters run thick and red with waste and cause the fish to sicken and die? Excellent! Those were the infallible signs of competitive success.

A little zealotry in the interest of the environment wasn't out of place. But you don't have to be a zealot of the anti-environmental stripe, one who scorns any effort to fight pollution as a plot by socialist tree huggers, to admit that some environmental protection has gotten out of hand.

And now the courts are whittling away at some of the legislative efforts. No doubt, the backlash will lash back too far and the pendulum will have to swing to the other extreme for a while. Consider these signs of the times.

Recently an appeals court agreed with the state of Virginia that the EPA was out of line in trying to impose stringent emissions standards designed for California on 12 states in the East. Interestingly, six of the states let off the hook by the courts agree that their air is bad enough to warrant the California strictures and may comply anyway. But the remaining states, including Virginia, won the right to comply with less-stringent standards.

In a unanimous Supreme Court decision, it was decreed that provisions in the Endangered Species Act cut both ways. The law permits any person to sue the government if he believes he is being harmed under the act.

The law was intended to empower individuals to protect endangered species. But in an Oregon case, farmers and ranchers decided they were the endangered ones and turned the law on its head. Deprived of water by an attempt to help endangered fish, they sued the government for relief.

The court said the citizen-suit provision did not protect environmentalists alone but could be used by citizens harmed by environmental efforts that have unintended consequences.

A lot of the green cases that make people see red have to do with innocent bystanders sideswiped by environmental protection. The Wall Street Journal recently described a not atypical case involving the notoriously heavyhanded and frequently misapplied superfund law. In Gettysburg, Pa., more than 800 people are being held liable for the cost of cleaning up a toxic dump to which their refuse was carted, even though they knew nothing about the pollution and had no choice in the matter.

Obviously, absurd outcomes often accompany well-intentioned environmental laws. The EPA has been known to behave like a cliche bureaucracy run amok. Too often, ``Clean and Kafkaesque'' might be its motto.

The equally obvious solution is to modify rules in light of experience rather than stick rigidly to the ridiculous. Yet the enviros frequently behave like a juggernaut - undeflectably following a path no matter how much of a mess is created.

Worse, every dopey environmental action creates an equally lunatic reaction. So zealots try to gut sensible legislation or deny the existence of well-proven pollution problems. Take the case of takings, please.

The Fifth Amendment forbids government to take private property for public use ``without just compensation.'' Good. That's the way it ought to be. But the farther fringes of the anti-enviro crowd have seized on the takings clause as a bulwark against any environmntal protection they don't like.

Does a government try to zone land to forbid industry from occupying it or to preserve wildlife? That's a taking, and the affected owners should be compensated for the loss incurred by not being allowed to build a battery works on the spot.

Taken to its illogical extreme, this argument means that any restriction on land use is a taking. Anytime a piece of property can't be used to store plutonium, it's a government oppression and the owners should be paid for the loss.

Unfortunately, if some environmental protection has gone too far and some anti-s have swung too far the other way, the issue is not likely to be resolved by civil discourse in the public forum. The result is not likely to be rational modifications to misguided regulations. Alas, when zealots meet zealots, they meet in court. Often only the lawyers win. MEMO: Mr. Monroe is editor of the editorial page of The Virginian-Pilot.

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