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Land Rights: The 1990's Property Rights Rebellion February 1996 Insider - In Focus: Book Review "Upon the sacredness of property, civilization itself depends." -- Andrew Carnegie In Land Rights: The 1990s' Property Rights Rebellion, the authors remind us of the primary role of private property in a democracy. This nine essay collection describes how excessive environmental regulation can infringe private property rights and effectively violate the Fifth Amendment's guarantee that "nor shall private property be taken for public use, without just compensation." In the first chapter, "The Property Rights Movement: How It Began and Where It Is Headed," by Nancie G. Marzulla, President of Defenders of Property Rights, the author presents an interesting history of the modern property rights movement. Marzulla contends that the modern assault on private property rights began in 1970 with two events: the first celebration of Earth Day and the creation of the Environmental Protection Agency. These two events helped spawn a regulatory nightmare for many innocent property owners. Marzulla recalls the story of a Florida man, Ocie Mills, who was imprisoned for 21-months for dumping sand on his own property. The sand filled a wetland and thereby violated the Clean Water Act -- even though a federal judge later ruled that Mills' land was "probably not" a wetland under the Act. Marzulla's most interesting point, however, is the following. The property rights movement is not seeking less environmental protection -- it merely asks that the few unfortunate landowners who do lose their property to regulation will no longer be forced to bear an unfair share of the burden. Marzulla persuasively argues that private property is not only not inconsistent with environmental protection but can actually enhance respect for the environment by avoiding the tragedy of the commons phenomena that often accompanies public lands. In the essay, "The Lucas Case and the Conflict over Property Rights" James R. Rinehart and Jeffrey J. Pompe explain how an obscure developer became a poster child for the property rights movement. In 1986, David Lucas bought two oceanfront lots near Charleston, S.C. for approximately $1 million. At the time, there were no regulations or laws that would have prevented Lucas from building a single-family home on the property. However, in 1988, South Carolina passed the Beachfront Management Act. The Act created a new building setback line that completely prevented Lucas from developing his property. In sum, the Act, which did not contain a grandfather clause, made the two lots worthless. Although the state did not officially seize title to Lucas' land, like so many environmental regulations, it restricted the owner's ability to use the land to such an extent as to constitute a "taking" under the Fifth Amendment. Finally, after four years of tortuous litigation, $500,000 in legal fees, and an appeal to the U.S. Supreme Court, Lucas won the case. The state of South Carolina was forced to buy the land for market value. The Lucas case, the authors remind us, represents the key issue in the environment movement. When excessive government regulation inflicts pain on some individuals while benefiting others, who should bear the costs of the regulation? The authors argue that from an equitable perspective, a property owner like Lucas should not be forced to bear the total cost of a regulation that benefits everyone, even if the aggregate benefits exceed the property owner's costs. Ironically, when the state of South Carolina was forced to buy Lucas' land, it was faced with a dilemma: Either develop the property and protect its expensive investment, or do not develop property and own two worthless lots. The state tried to force the latter option on David Lucas. Once it owned the property, however, it hypocritically sold the lots to the highest bidder for development-an option it denied David Lucas. The book reminds readers of the importance of a Chief Executive who is committed to balancing environmental protection with property rights. The authors recall how President Reagan appointed officials who brought a cooperative, common sense attitude toward industry and property owners. In the authors view, Reagan officials such as James Watt as Secretary of the Interior and Anne Gorsuch as the Environmental Protection Agency Administrator maintained a proper balance between environmental protection and property rights that benefited all Americans. The authors contrast the Reagan Administration with the heavily regulatory and bureaucratic Bush and Clinton Administrations. For example, the book points out that under Bush appointee William Reilly, the EPA broadened the definition of "navigable waters." This regulatory change redefined land that held water for only short periods of time each year as "wetlands" -- doubling the land over which the federal government exercises control from 100 to 200 million acres. This regulatory change vastly expanded the federal government's control over private property under the Clean Water Act. For serious students of public policy, Land Rights: The 1990s' Property Rights Rebellion is well worth the read. Rhett DeHart is Special Counsel to Edwin Meese, III, Ronald Reagan Fellow in Public Policy at The Heritage Foundation |
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