With presidential contenders Bob Dole of Kansas and Phil Gramm of Texas in the forefront, 32 Senate Republicans announced their support Thursday for legislation designed to substantially curtail federal regulation of private property.
Declaring a right that the Supreme Court has yet to affirm, the bill says any regulation that decreases the value of property by even a small amount is a "taking" and that the government must compensate the owner--just as it would compensate the owner of land taken to build a highway.
While the Senate legislation is mainly a reaction against regulations protecting endangered species and wetlands, its scope is considerably broader. Its compensation requirements would apply to property regulated under federal laws governing the environment, civil rights and health and safety matters. In that respect the bill is even broader than one passed by the House, which was limited to rules governing endangered species, wetlands and water rights.
Flanked by the bill's supporters--senators from Western and Southern states--at a press conference, Dole said the bill would help put an end "to a sustained assault on private property rights in America."
"These are wrenching changes," Dole said, "but necessary" to curb the excesses "of a regulatory state that seems to grow and grow, that is increasingly intrusive."
The bill was quickly condemned by Interior Secretary Bruce Babbitt. Echoing the views of many environmental groups, Babbitt called it a radical proposal that "will effectively eliminate 25 years of environmental progress made through the Clean Water Act, the Endangered Species Act, the Marine Mammal Protection Act and other landmark environmental laws."
"This bill covers everything," said Joseph Sax, counselor to Babbitt. "Regulations governing air pollution, water pollution, pesticides, toxic substances." Sax contended that virtually any federal law, from civil rights legislation to laws mandating special facilities for disabled people, could trigger the compensation requirement if it negatively affects property values.
According to Sax, the legislation would place officials responsible for enforcing the nation's environmental laws in an untenable position. The government would have to make a choice between paying billions of dollars to prevent people from polluting and ending enforcement of laws designed to protect both human health and natural resources, he said.
The bill's proponents scoffed at the charge that the government would have to pay polluters not to pollute. Dole's counsel, Kyle McSlarrow, cited language in the bill that says the government could prohibit any use of property that amounts to a "nuisance" without having to compensate the owners.
The Senate legislation would require compensation when a piece of property or any part of it loses a minimum of 33% of its value. Thus, if a regulation limits development on 100 acres of a 1,000-acre tract, the owner would have to be compensated for the diminished value of the 100 acres.
As the so-called "takings" bill made its way through the House a few weeks ago, Babbitt expressed the hope that the Senate would act as a moderating influence on the legislation. But Babbitt and other critics now fear that the bill that emerges from Congress will be at least as strong as the House version.
The takings issue has become a litmus test for the GOP's conservative wing, which characterizes the legislation as a sort of mom-and-pop bill of rights that would protect small property owners against bullying federal bureaucrats.
By not endorsing a bill that would require compensation, Dole had risked being outflanked on the right by Gramm, who has been one of the most outspoken advocates of property rights.