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Are American Elections Fair?

Think Tank Transcripts:Environmentalists versus Land Owners

MR. WATTENBERG: Hello. I'm Ben Wattenberg. A major new debate isunfolding across the American landscape. On one side are propertyowners who say that government regulations destroy the value of theirland. They want compensation. On the other side areenvironmentalists, who say regulations are vital to saving Americannatural heritage.

Joining us to sort through the conflict and consensus are:

Richard Epstein, law professor at the University of Chicago andauthor of 'Takings: Private Property and the Power of EminentDomain'; Jonathan Turley, law professor at George WashingtonUniversity and director of the Environmental Crimes Project; FredSmith, president of the Competitive Enterprise Institute andco-editor of 'Environmental Politics: Public Costs, Private Rewards';and Professor Peter Byrne, professor at Georgetown University LawCenter.

The topic before this house: Environmentalists versus landowners.This week on 'Think Tank.'

Americans have always revered private property. They also lovetheir country's natural heritage. What happens when two of America'sfundamental values collide?

MARGARET ROGERS (Rancher): (On videotape) When I got this letterfrom the Department of the Interior Fish and Wildlife Service, theycame on me without any warning at all that I could have a stay injail, a $25,000 to $50,000 fine. And I thought it was unreal that thegovernment can come in when we were the property owners and ownedthis property. I just wondered, what else can the government do toprivate property, to private property owners?

MR. WATTENBERG: Margaret Rogers is one of thousands of smallinvestors, ranchers, farmers, developers and home builders who havejoined the property rights movement. They say that federal land useregulations cost them billions of dollars every year. In her case,the government ordered her not to build a fence on her property.Federal agents told her the fence might destroy the habitat of thegolden-cheeked warbler, a bird protected by the Endangered SpeciesAct.

The new and vigorous property rights movement points to the FifthAmendment of the Constitution, which says 'Private property shall notbe taken for public use without just compensation.'

Members challenge federal laws, like the Endangered Species Actand the Clean Water Act, claiming that regulations restrictdevelopment, amounting to government seizure of their propertywithout compensation.

This growing national movement has been heard in Washington. Theprivate property owners' bill of rights was recently introduced inCongress. The bill would compensate landowners if government landregulations cut the value of their property by 50 percent.

Worried environmentalists counter that only government has theability to protect whole ecosystems, like the wetlands of theChesapeake Bay, from the polluting activities of thousands offarmers, industries and municipalities.

Environmentalists also argue that the federal government must havethe right to control land use in order to protect more than 700species threatened with extinction. For example, development has beenrestricted on 200,000 acres of California coastal land in order topreserve habitat for the endangered California gnat catcher.

But landowners argue that if it is in the public interest topreserve a wetland or a habitat for endangered species, why shouldn'tthe government pay for it? Should the entire burden fall onindividual landowners?

BILL HUMPHRIES (Rancher): (On videotape) I say property rights arelike civil rights. You can't take anybody's away without hurtingeverybody.

MR. WATTENBERG: Gentlemen, thank you for joining us. This is amost disparate group. And I wondered if we could start out by tryingto get some definitions and descriptions, perhaps starting with you,Fred Smith, and going around, back and forth, to describe the natureof this growing property rights movement that we saw in the openingclip.

MR. SMITH: Well, it's sort of a typical American spontaneousgrassroots organization movement. It's almost uniquely our society'soutrage when it feels its rights are violated, people get organized.They're small landowners, they're small business groups, they'repeople who for various reasons -- wetland law, endangered specieslaw, whatever -- have found that they can't do what they thought theycould do with their land for development, for building a home forselling for retirement purposes, cutting down trees that they'll savefor the future.

They don't feel that there's a conflict between their use of theland and national interests, and if there is, they feel they shouldbe compensated for it. They're demanding that their rights behonored, and they're now in every state and there's hundreds of them,and they're doing an incredibly interesting job.

MR. WATTENBERG: Jonathan Turley, you direct something called theEnvironmental Crimes Project. How do you see this I think growinggroup of people who call themselves the property rights movement? MR.TURLEY: Well, I don't see the property rights movement quite as newand spontaneous as perhaps you do. The property rights movement, inmy view, has some anachronistic aspects to it. That is, the propertyrights movement is sort of a period piece from another time, whenproperty rights were defined in a very robust and broad sense andwhen governmental interests and regulations were very, very few.

Now, I'll give you that historically those property rights havebeen diminished with time. But there's nothing wrong with that, thereis nothing unnatural and there is certainly nothing unconstitutionalwith it because this is part of the process of living within ademocracy, and property rights are a socially contingent thing. Theyare defined by a society according to societal needs.

MR. WATTENBERG: All right, okay. Richard Epstein, you have beendescribed by the commentator and activist Jessica Matthews, who hasbeen a guest on this program, as 'the libertarian law professor, thepoisonous source of this poisonous movement.'

(Laughter.)

So without further ado, sir, why don't you tell us how you seethis

MR. EPSTEIN: With friends like Jessica Matthews, it's not veryimportant to have any enemies around in the world.

I think, just to take up on what Jonathan said, it's a verydangerous way to look at the world to assume that since politicalinstitutions have decided to ordain for certain kinds of results,that we necessarily have to live with them. The whole point of theConstitution is to say that some things ought to be beyond majorityrules and other things ought to be subject to it. And the questionyou have to ask is whether or not the evolution to the new kind ofenvironmentalism is something which gives you better social resultsthan you had under the older system in which the property rightswere, as he said, more robust.

And I think that one can see the answer is clearly that this newsystem is a disaster from a social perspective, and that what onereally wants to do is to have a system of stronger property rights todeal with environmental protection, not weaker ones.

MR. WATTENBERG: Okay. Peter Byrne.

MR. BYRNE: However poisonous the doctrine is, Richard himself isnot a poisonous source.

But I think that we are seeing federal land use controls for thefirst time on a large scale. That is because of widespread andlegitimate concerns about serious degradation of the natural worlddue to expanded economic activity assisted by new kinds oftechnologies.

I agree with Jonathan that the resistance to government regulationon the basis of some romantic notion of natural rights is a constantaspect of American politics. And what you have here is thatinvocation in simply a new social context.

MR. EPSTEIN: There is some simplicity about the movement, and asan academic matter, I would not want to defend a hundred percent ofall that they do, but I think it's very instructive that the kinds ofcases that are put forward as illustration of what government oughtto do are kinds of things that could have been regulated bygovernment or by private rights of actions a hundred years ago.

MR. WATTENBERG: So what has changed?

MR. EPSTEIN: What's happened now is that the way in which it'sbeen described is that things that are thought to be appropriategovernment functions are government functions, but the new land useregulations go far above and beyond the kinds of things we're talkingabout.

MR. WATTENBERG: And that is what has stimulated -- just to get therecord straight -- that is what has stimulated this property rightsmovement.

MR. EPSTEIN: Sure.

MR. TURLEY: Well, I think it's interesting that Richard I thinkmakes a good foundational point upon which we can agree, that in hisearlier remarks, he essentially acknowledged that property issocially contingent, it's not coming from some divine source, andthat because it's socially contingent, it is up to society.

And I take it that Richard's principal objection is he doesn'tfeel that society is benefiting particularly well from environmentalregulations.

MR. SMITH: But also, Jonathan, it's how we share burdens. I meanthe United States has a strong commitment to environmental values,but also a strong commitment to private property, just as America foryears had a strong commitment to national defense. But when themilitary wanted to build a base, it didn't go out and seize property.It basically either purchased it or it condemned the land and paidcompensation.

Environmental values are important, but how equitable is it topick a handful of small people [sic] and then essentially put thewhole burden on them? If we really believe that habitat forgolden-cheeked warblers is an important thing, then let's pay thosepeople whose land values are destroyed.

MR. WATTENBERG: Or -- wait a minute, let's not get into thingsthat sound trivial -- you take the Chesapeake Bay, I mean which is agreat natural habitat, which isn't the golden-cheeked warbler or thered-breasted dowager or any one of those things, but is a seriousAmerican asset being polluted by myriad sources. MR. EPSTEIN: Theanswer to that is, classical rule says that if you have public watersthat are polluted by private property, you could enjoin thatpollution and you could have done so since the year 1500 or earlier.

MR. WATTENBERG: Who could have done it, the government?

MR. EPSTEIN: The government by virtue of its ownership. That is,the question about private property, to get it into perspective, isyou have to assume that everybody agrees on the pollution andcontamination cases. The only area in which there is a seriousdisagreement is on the other side of the line, where there is nopollution and no contamination. Then the question is, do you have thesame degree of regulation?

MR. WATTENBERG: Let me ask you a question and then we'll come backto that. Norman Podhoretz, the editor of 'Commentary' magazine, wrotesome years ago that 'environmentalism is the American socialism.'

MR. EPSTEIN: Yes.

MR. WATTENBERG: What you are saying is you have a political,ideological agenda saying these guys want too much government,they're taking over the world, and this is the vehicle you're doingit with.

MR. EPSTEIN: But the question is why? And the reason why I want tostate that is I think that the reason you worry about privateproperty is to figure out what set of incentives are going to becreated on private owners on the one hand and political actors on theother.

So to take a recent important case, the Lucas [phonetic]situation. The issue wasn't

MR. WATTENBERG: Now, what is the Lucas situation?

MR. EPSTEIN: I was going to -- the issue there was not pollution.The issue was whether a man could build a single-family home on abeachfront lot.

MR. WATTENBERG: This was in North Carolina?

MR. EPSTEIN: No, in South Carolina. And the government came alongand said, no, no, no, we want this land to be kept open for theleisure of our people and to promote tourism in the state. And thenlater they invented an argument, he can't build his house because ifit gets blown away in a hurricane, people will be hurt. Phonyargument, as far as I can see.

And I think the answer is, if you allow the government to imposethat regulation, they will impose it on land that is worth hundredsof thousands of dollars for environmental benefits that are totallytrivial. Once you require compensation -- the government will notcompensate in all cases, and that's very important -- they won't dothe regulation.

MR. WATTENBERG: Let's hear from the other side. Was the governmentright in trying to say, we are allowed to take this man's propertyand say you can't build on it because we want open beach in SouthCarolina?

MR. BYRNE: I think that there is a very legitimate question forgovernment about construction of residences and other permanentstructures that are on barrier islands that are subject to the forcesof wind, water and tides, that the -- I can't -- I don't want toreargue Lucas, but that there is a legitimate interest in restrainingthe disruption of those natural forces.

MR. SMITH: But that argument would be made stronger if the outcomehad been somewhat different. As you undoubtedly know, when Lukasfinally won his case, got compensated, the state eventually purchasedhis property, and then immediately turned around and allowed it to beused for the purposes they denied Lucas. They allowed it to be builtupon.

The hypocrisy of the rules in this case -- I think we're dealingwith bureaucratic excess without a check and balance. If you givepeople an unlimited check on human life in war or unlimited propertyrights in the form of environmental excesses, you're going to end upwith trivial presumptions of power by political officials againstsmall, defenseless landowners.

MR. TURLEY: Oh, there is a check and balance. It's called thelegislative system.

MR. SMITH: No, there is no check and balance in this case becausewhat we're dealing with is small landowners hit with the power of thefederal government, as we've seen over and over again. When thathappens, individual rights are overridden by temporary, transientmajority. MR. TURLEY: Yeah, but I -- but the thing that we're missinghere, of course, is that we're not just simply talking aboutenvironmental values in some abstraction, and Richard's presentationof the environmental regulations makes it sound like this truly is awhimsical fascination of a bureaucrat in the beltway.

In reality, we're talking about -- and shudder to suggest -- avery efficient application of federal regulations. The libertariansmiss, of course, I think an essential point, which is that in thepractice of law, we try to allow people to make individual decisionsand we try to protect them from being forced to bear the cost ofother people's activities.

What people that destroy wetlands want to do, and other polluters,is force the costs of their operation on the rest of us. That's thereason we don't let a factory owner dump a hundred tons of airpollution

MR. EPSTEIN: But Jonathan, that is not simply an accuratestatement. Lucas did not dump anything on anybody. This was asituation in which when you allow the government to designate landsas wetlands, they will simply be rapacious. They will never designateas a wetland something for which they have to pay.

I have worked on a case, for example, where they designated awetland on the major commercial strip in Oakland, Michigan. The landis worth $10 million worth of development, it is now run over andpockmarked by tractors, and some government bureaucrat at the statesticks a trowel in the ground, finds it wet, and after eight yearsand hundreds of thousands of dollars' worth of litigation, this pieceof commercial real estate has been tied up.

MR. WATTENBERG: Is that fair for the government to do that?

MR. TURLEY: Oh, this is part of the parade of horribles. Theselaws are designed, like any regulations, to maximize the benefit forall of us. We all benefit from these regulations.

Now, yes, your ox may be gored on one wetlands case and mine mightbe gored in another, but we all benefit from it. To say that thegovernment has to compensate for virtually any regulation thataffects private property is to take us back in time.

MR. EPSTEIN: Nobody has said that. What we have said, if youpollute, we prevent without compensation. These are cases in whichthere is no pollution, and if you make the government pay, it will dosomething which it will not do now. It will pick and choose thoselands to take. It won't take land in major development with a privatevalue of $10 million and a wetland value of $100,000. It will takeland where the values are reversed.

MR. BYRNE: What we're talking about here are the dimensions ofproperty rights. No one is denying that property, private property isa vital institution for both the flourishing of individual lives andfor the economy. What we are talking about here are the dimensions ofproperty rights and the ability of elected representatives, thedemocratic process to place limits on the rights that attach toownership.

MR. SMITH: But I think this is really missing a point here. Ithink we're really talking about two very, very separate things. Oneis, are the destruction of property rights that the environmentalmovement is now engaged in likely to advance environmental goals? AndI think there the answer is, if so, then why would environmentalistsoppose the military never paying for land if they needed it formilitary bases, for bombing ranges, or the highway departments neededit for right-of-ways?

Generally, by requiring compensation in those cases, we don'tfrustrate national objectives. We achieve them, but we achieve themin a more equitable way, with the cost of those land valuereductions, or changed land values, being borne by all the citizenswho it affects.

But more importantly, if we really are looking at what wouldadvance environmental objectives in our society, it's not thatthere's too much private property, too much private control overresources. It's that we have too little.

The resources that are at risk in this country, whether you'retalking wetlands, the Chesapeake Bay or the wildlife in America, arepolitically controlled resources and would bear much betterprotection if they were ecologically privatized. That's where weshould be going.

MR. WATTENBERG: Let these fellows

MR. TURLEY: Well, I think that within that -- I can't let pass,the environmentalists are not talking about destroying propertyrights. What's involved here is what the definition of propertyrights is. As a society becomes more crowded, as it develops,property rights change, that as the externalities or the costs of all

MR. EPSTEIN: That is not correct.

(Simultaneous talking.)

MR. WATTENBERG: Jonathan, there was a question sort of brought upbefore. I mean is it fair to make one single person pay those -- inother words, if somebody has a piece of property worth a hundredthousand dollars, and because of some environmental regulation, it isdiminished and then only worth $5,000, is that fair?

MR. TURLEY: We're not making one person pay. What we're doing isMR. WATTENBERG: Well, in some cases you are.

MR. TURLEY: Well, certainly people will pay -- like any otherregulation, it will affect us differently. But we all live in asociety. That society has to have certain rules that aremajoritarian, that are beneficial to us all. That's part of living ina society. And we don't compensate for many of those things becausethey're essential to governance.

MR. SMITH: The point, though, is, we have now a law in Americathat is so unbalanced. If a homeless person knocks at your door, youcan't shoot them. If an endangered species lands on your property,you can't shoot that endangered species. In both cases, I think thosekinds of rules are reasonable.

But today the homeless person is not entitled to your frontbedroom, and yet the endangered species if it wanders on yourproperty can confiscate your whole property rights.

Essentially, we have got laws for habitat, for species now that wewould never entertain for people. And you do not pay rents for that.That is wrong.

MR. TURLEY: I'm willing to concede MR. WATTENBERG: Let's just goto theory, just for a moment. We had planned to go more to theory,but can environmental regulation be regarded as a taking?

MR. TURLEY: In terms of environmental regulations being a taking,sure, there are cases in which environmental regulations could betakings. But that's a far, far different question than what's beingadvanced here. What the private property advocates are trying to dois essentially roll back our notion of legitimate governmententerprise.

Now, they may try to put it into a Trojan horse of the takingsclause, but it's an old argument. These are people that don't likegovernment and they want to try to reduce it to a minimum. And that'snot necessarily a bad philosophy until it begins to affect thequality of life that our society has tried to build. We have a goodsociety here, and it's because we regulate away certain externalitiesthat affect us all.

MR. EPSTEIN: These are not externality regulations. Over and overagain, there is nothing in the property movement which says thatpollution itself ought to be a constitutional right.

MR. BYRNE: These of course are legitimate arguments to make in thepolitical process. Where I think one needs to be concerned is thatproperty rights proponents would like to make Richard's test, if Ican just briefly -- you know, that what breakdown has there been inthe contracting process that justifies government intervention as aconstitutional test for the exercise of power by legislatures?

But the theory of our Constitution is that we have a democracy andthat the limitations on the democracy are spelled out in theConstitution, but they are relatively narrow.

We can talk about it, but his test is not in the Constitution.

MR. WATTENBERG: Go ahead, talk about it.

MR. BYRNE: Well, I mean

MR. SMITH: But, look, I'm the non-lawyer on this panel, and Ithink to some extent, we're getting involved in legalisms here.Generally speaking, up till now when national purpose asserteditself, government had the right, either through purchase or in thedomain of taking the property, but we compensated for it.

Why are we so frightened that environmental rules, environmentalcauses can't bear the same burden national defense has? I think itcan and we'll just have a wiser environmental policy.

But, Ben, one thing is, we also have this argument that propertyrights are threatening the environment. America has the greatestsystem of private property in the world and our environment vastly isbetter than anywhere else in the world. MR. WATTENBERG: My sense, asa moderator here and being a true -- believe me, a true non-expert,is that what is happening is that in the last few decades, you havehad this vigorous environmental movement that has done a lot ofthings, some good and perhaps some over the line, and you are nowhaving a rebound against that saying, whoa, too much, too far, toofast.

Is that what's happening, and isn't that really the nature ofdemocracy? Isn't that good?

MR. BYRNE: Yes. What is wrong with the process as it's unfoldingin the Congress is that the property rights bills, bills of rightsand whatnot, are stalking horses. They are taking the place of debateabout the legitimate scope of particular environmental laws. Theproponents of them say, I'm all for the environment; I just thinkthat we ought to have government pay for the losses thatenvironmental regulation causes.

The reality, of course, is that the government could never in factpay that money. The money does not exist in the government treasury.

So it is a way to defeat environmental regulation without takingon those regulations on their merits.

MR. WATTENBERG: Jonathan, have the environmentalists gone too farand this is a natural fire break?

MR. TURLEY: No, I don't think this is a reaction toenvironmentalists. I mean if you read Richard's book and othertreatises coming from this side, this is a reaction againstgovernment. And it's the oldest argument. We've been debating thisfor over 200 years. And there is every -- every time there is a newcause, a new focus, but at the heart of it is a small group of peoplewith very concentrated interests who are trying to write into theConstitution the right to be compensated for the types of regulationsthat we all have to live with as part of living within a society.

MR. WATTENBERG: Will you not accept that there is an argument thatthere is too much government in America now?

MR. TURLEY: Oh, I'm not an advocate for government. What I'm anadvocate for -- and Richard laughs; he expects to sing 'TheInternationale' next -- but the fact is I'm not an advocate forgovernment. In fact, I think I'm the advocate for individual rights.How about my rights? How about when Richard's friends and Fred'sfriends do things on their property that materially affect my life,affect the nature that I live in, the environment that I live in?

MR. SMITH: Jonathan is typical of the elitist, inside-the-beltwayenvironmental movement, which basically decided that its religiousvalues will run roughshod over all Americans, that the people out inthe real world

MR. WATTENBERG: Religious values -- you mean it's sort of

MR. SMITH: Eco-theocratic values, that the cathedrals of naturewill be government-protected, that the cathedrals of God will be paidfor by private parties. What we're dealing with is a reaction--democratic reaction, a populist reaction against the excesses ofWashington. It's very healthy. But I think it's also a reaction tothe view that only government knows how to manage the environmentalresources of America. Most Americans think they're pretty goodstewards of their own property and they're trying to take back power.I think they're going to get it.

MR. EPSTEIN: On the private side, I would say this. To the extentthat you have clear boundaries between neighbors, individuals whowish to protect the environment are in an ideal position to do sobecause they will be able to reap the benefits of what they do. Oneof the terrors of the environmental movement is it encourages thedestruction of habitat, because unless you destroy it, you will findthat the government will regulate it so the rest of your land becomesvalueless.

What you really want to do is to have the government buy thehabitat, because that way the private owners will have an incentiveto discover and to cultivate it.

And the second point is, what do we do about government? Madisonsaid a long time ago that factions were the bane against whichconstitutions have to guard. And you are watching them in operation.

MR. WATTENBERG: Okay. Thank you, Richard Epstein, Peter Byrne,Fred Smith, and Jonathan Turley.

And thank you. We greatly appreciate hearing from our viewers.Please send comments and questions to the address on the screen. For'Think Tank,' I'm Ben Wattenberg. END

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