Bill Would Limit Federal Power Over Environment

It’s hard to find the word environment anywhere in the 82-page proposed law known as the Job Creation and Wage Enhancement Act. But it is even harder to point to any other piece of legislation that would do more to restrain the federal government’s authority over air, water, wildlife and wilderness.

Part of the congressional Republicans’ “contract with America,” the job creation act, at first glance, seems to focus on lowering the capital gains rate and otherwise reducing the tax burden for investors. Deep inside the lengthy bill, however, is a set of proposals that, depending on one’s point of view, offer welcome relief from costly federal regulations or declare war on the nation’s environmental laws.

“It is the most far-reaching bill of its kind that has ever been introduced in Congress,” said Joseph Sax, counselor to U.S. Interior Secretary Bruce Babbitt and a former professor of environmental law at UC Berkeley.

Proponents of the bill deny that it would give polluters license to flout existing laws, but they say it would force the government to be much more selective in imposing new environmental regulations.

The bill would require the U.S. Environmental Protection Agency and a host of other federal agencies for the first time to shoulder a substantial share of the costs of regulation now borne by state and local governments and private enterprise.

It is a burden, say federal officials, that a deficit-weary government probably cannot afford to take on.

“The costs it would generate, ultimately, are in the uncountable billions,” Sax said.

According to the EPA’s own figures, business and industry currently spend $150 billion a year to comply with federal anti-pollution laws. The National Assn. of Counties has estimated that it will cost local governments more than $30 billion over the next four years to comply with the dictates of a dozen federal laws governing sewage treatment, toxic waste disposal, storm water runoff, air pollution and dozens of other environmental hazards.

Besides making it prohibitively expensive in many instances for the federal government to order local cleanups, the bill requires complex new risk assessment procedures that, critics say, would give affected industries the chance to block any proposed new government regulation. “This is really the corporate veto act,” said Gary Bass of OMB Watch, a nonprofit environmental advocacy group. Bass was referring to a provision in the proposed bill that would create peer review panels, open to members of regulated industries, with the power to block new regulations.

At the heart of the proposed legislation is a chapter on “Private Property Rights Protections and Compensations,” which would force the federal government to compensate industry and landowners when the costs of regulation exceed 10% of the value of the property or business. The rationale for the legislation is rooted in the so-called “takings clause” of the 5th Amendment of the U.S. Constitution, which reads “. . . nor shall private property be taken for public use without just compensation.”

The compensation requirement could mean paying millions of dollars to real estate developers prohibited from building on fragile wetlands. It could mean reimbursing a small family farm for livestock killed by a grizzly bear or some other federally protected predator.

In California, the federal government could find itself facing huge compensation costs if it wants to continue safeguarding places such as the Bolsa Chica wetlands, 1,700 acres of salt marsh in Huntington Beach, or as it tries to protect endangered species such as the California gnatcatcher or the Stephens kangaroo rat. Under current law, the government can restrict the activities of private landowners in these places without compensating them.

Carl Pope, executive director of the Sierra Club, insists that the bill would go a lot further, describing it as “an assault on the guiding principle of virtually all laws governing air, water and waste disposal”--the dogma that polluters must pay for the risks they pose to society. “If the costs of cleaning up an old, dirty factory that is a threat to the health and safety of a neighborhood exceeds 10% of its value, and it well could, the public would have to pay for it,” said Pope.

Proponents of the legislation scoff at Pope’s claim, accusing him and other movement leaders of exaggerating the bill’s potential in order to fire up opposition. They maintain that the bill is not intended to undercut existing laws but to restrain the government’s appetite for new ones.

The bill does represent the leading edge of a broad backlash against environmental policies on both private and public lands. It is fueled by a libertarian mistrust of federal authority that is shared by many new members of Congress. But it also marks the coming of age of a determined property rights movement, especially strong in the West, that brings together small landowners and large real estate developers intent on backing federal regulators off their land.

The looming battle over the proposed legislation is likely to be the first of many environmental fights in the new Republican-dominated Congress. In the hopper, for example, are several proposals to sell off millions of acres of federally owned land in the West, to open up Alaska’s National Wildlife Refuge to oil drilling and to trim the holdings of the National Park Service.

In a bow to the new political order, Babbitt announced this month that he was giving up on a plan to boost grazing fees for ranchers who raise their sheep and cattle on federal lands. The issue had become a rallying cry for the property rights movement, which condemned the proposed fee increase as an effort to usurp a century-old right of access to the federal range.

Environmentalists were quick to criticize Babbitt for giving up on what they thought was a good idea. But they are more concerned that the environmental gains of the past 20 years are in peril as a result of the Republicans’ pending legislation.

If the bill had been in effect 23 years ago, said Interior Department officials, the federal government would not have been able to ban DDT, the pesticide responsible for nearly wiping out the bald eagle and the brown pelican.

“There is no away we could have reimbursed all of the farmers who were using that chemical,” said department spokeswomen Lisa Guide.

By turning the polluter-pay tradition on its head, environmentalists say, the proposed legislation would put the government in an untenable position. It either would have to stop regulating polluters or face the budget-busting alternative of paying them not to pollute.

Not true, say supporters of the legislation who point to language in the bill that, they insist, will rule out compensation to lawbreakers, including polluters or anyone causing a public nuisance on their property.

“Common law says my right to use my property as I see fit ends when it infringes on the rights of my neighbor, and this legislation respects that principle,” said Jonathan Adler of the Competitive Enterprise Institute, a policy analysis center in Washington, D.C.

Where the legislation will make a difference, said Adler, is with private land use that does not threaten human health and safety.

“It’s about compensating landowners when the government tells them that they cannot make reasonable use of their land, to build a home or plant a crop.

“It’s the situation where a homeowner is prevented from building on his own property because it might endanger a rare snail, or where a tree farm is prohibited from harvesting timber from its own forest because an endangered woodpecker is nesting there.”

Adler and other proponents of the legislation readily acknowledge that the private property protection provisions of the bill would limit the government’s authority to protect wildlife and natural resources.

“The federal government is not going to be able to pay for every species of wildlife or acre of wetlands it would like to protect,” Adler said. “Instead, the government will have to prioritize and focus its resources on what it cares most about.”

At the very least, the bill may force Congress to come to grips with questions that the courts have been grappling with since they ruled on the first zoning case more than half a century ago.

When does government have the right to restrict the use of property in order to uphold the interests of the community?

And if it is in the public interest to preserve wildlife, wetlands or wilderness, shouldn’t the public have to pay the cost of preservation and not just the property owner whose land is found to harbor a rare species or a precious resource?

In recent decisions, the courts have ruled in favor of compensating private owners only when their property loses 100% of market value as the result of land use restrictions imposed by the federal government. Clearly, the pending bill would relax that standard considerably.

If the bill passes, it could have the greatest impact on the Endangered Species Act and on provisions of the Clean Water Act that govern wetlands. Both laws allow the federal government to place private property off limits to development in order to protect wildlife habitat.

Despite the outcry over the proposed legislation, however, federal officials have shown some willingness to make the sort of financial commitment envisioned by the bill.

The historic accord that recently ended years of wrangling over water rights in the Sacramento Delta would not have been possible without an unusual concession by Babbitt.

The source of most of the state’s fresh water, the delta is also home to two endangered fish and several other declining species.

The political logjam over delta water rights was broken only after Babbitt declared that if more water was necessary to keep another fish from the brink of extinction, the federal government would pay for it.

Surprised and pleased by Babbitt’s pledge, some property rights advocates said the delta deal promises the kind of compensation called for by the 5th Amendment.

Remarked one aide to California’s Republican governor after Babbitt signed the water agreement, “Maybe we’re not so far apart after all.”