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TIME: Almanac 1995
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<text id=92TT0248>
<title>
Feb. 03, 1992: Demanding Payment for Good Behavior
</title>
<history>
TIME--The Weekly Newsmagazine--1992
Feb. 03, 1992 The Fraying Of America
</history>
<article>
<source>Time Magazine</source>
<hdr>
ENVIRONMENT, Page 52
Demanding Payment for Good Behavior
</hdr><body>
<p> Advocates for the wise use movement have come up with some
pretty loopy ideas--among them, a scientifically silly
proposal to halt global warming by clear-cutting ancient
forests. But one of their radical notions has been getting a
friendly hearing from the courts, Congress and the Bush
Administration. The idea, which could ultimately cost state and
federal governments billions, is that private landowners are
constitutionally entitled to compensation when a government
imposes environmental restrictions on how their land may be
used. Citing the clause in the Fifth Amendment that bars the
government from taking private property "without just
compensation," scores of landowners and developers are now
seeking remuneration.
</p>
<p> In the past, the Supreme Court has rejected these pleas.
But it may reconsider the issue this spring when it takes up
the case of Lucas v. South Carolina Coastal Council. Real
estate developer David Lucas bought two lots on the Isle of
Palms in 1986 with the intention of building houses on them. Two
years later, new state regulations proscribed building so close
to the ocean. Lucas did not challenge the state's claim that
beachside construction would cause erosion and threaten the
stability of nearby homes, but he did seek compensation for his
investment. A lower court awarded him $1,232,387.50, the price
he paid for the land plus interest and taxes. The state
successfully appealed, arguing that its regulations did not
amount to depriving the developer of his land.
</p>
<p> It is easy to sympathize with Lucas, though land values
can also be enhanced by environmental and zoning restrictions.
But a broad decision by the Supreme Court would be disastrous
for the principle of environmental regulation. It would open
the door to a wave of demands for compensation from citizens
and companies affected by everything from rules protecting
wetlands to restrictions on critical habitats for endangered
species.
</p>
<p> A decision in favor of property rights could leave state
governments with a double bind, says Brian Gray, a University
of California specialist in environmental and property law. If
the state imposes new regulations to protect vital ecosystems
or species, it risks a slew of suits for compensation; but if
it does not act, it could be sued for failing to protect the
public trust.
</p>
<p> And where is the Bush Administration during this threat to
the principle of environmental regulation? It has sided with
Lucas. Some conservative legal theorists and their supporters
within the Administration would welcome a reinterpretation of
property rights that would also open the way to eviscerating
health, safety and zoning as well as environmental regulations.
</p>
<p> This reassertion of private-property rights comes at a
time when society is becoming ever more aware of the ways in
which actions in one part of the landscape affect the economic
and ecological well-being of other areas. If the U.S. were
still a sparsely populated country with vast wilderness areas,
it would matter less what one individual did with his or her
property. Says Erik Meyers of the Environmental Law Institute:
"The freedom to swing your arms stops at your neighbor's nose,
and what has happened is that noses have got a lot closer
together." In such circumstances, it seems odd to pay people to
pull their punches.
</p>
<p>-- By Eugene Linden
</p>
</body></article>
</text>