PERSPECTIVE ON THE ENVIRONMENT : Rights vs. Wrongs : A stealth bill perverts the ‘polluter pays’ principle while aiming to gut endangered species and wetlands protection.

All through 1995, the stealth Congress waged war on the environment. It did most of its work under the cover of budget reform, so awkward terms like pollution and species extinction never had to be uttered. Now they are at it again. This time the mask is named “property rights,” but the face behind it is unmistakably the same.

The Senate is scheduled to take up what is probably the most extreme property bill ever introduced in an American legislative body. It is a radical departure from the Constitution’s protection. It would reverse the “polluter pays” principle and require the public to pay property owners to obey the law.

Almost any governmental action that affects property values could generate a claim for compensation: ensuring the safety of airplanes, drugs and children’s toys, civil rights laws and bank regulation.

For example, if the federal government restricts the import of assault rifles and a gun dealer could show that the ban reduced the value of his overseas inventory, he could seek compensation under this bill. Similarly, if the Coast Guard established a phase-out of single-hull tankers in order to protect against ocean oil spills, the bill would permit the affected corporation to demand compensation for lost profits.

But the bill’s special target is environmental protection, in particular the Endangered Species Act and the wetlands provisions of the Clean Water Act.

A developer who owns 1,000 acres and is denied permission to develop the one acre that is a wetland could call on government to pay. Taxpayers would have to bear the burden of compensation for the full developmental value of that acre. Except where the proposed activity is a nuisance, a technical legal category that excludes most property uses, payment could be demanded despite harm to a neighboring owner or to public benefits.

The bill is so far-reaching that the Office of Management and Budget has estimated that claims arising under it could cost taxpayers tens of billions of dollars in just seven years.

How would such claims be paid in these days of deficit reduction, budget balancing and fiscal restraint? Proponents of the legislation have an easy answer. There will be few claims, they say, and very little, if any, money will ever be paid out. Instead, environmental regulation under targeted programs will be cut back or terminated. Just to make sure that happens, the bill requires that compensation claims be paid out of the implementing agencies’ program budget.

As the Congressional Budget Office explained in its report on the bill:

“We expect that relatively few [claims] would result in payment because the requirement that compensation payments be made from agency appropriations would cause the agencies to try to resolve as many claims as possible without having to pay any compensation--for example, by reversing or modifying permit decisions or enforcement action.”

In an extraordinary display of candor, supporters make clear that the bill’s central purpose is to diminish implementation of wetlands and endangered species laws. In a Senate report issued on March 1, they explain that the compensation provision “is designed to address situations . . . such as when the Army Corps of Engineers forbids an owner from developing . . . a wetland.” In the same report, they note that while the nuisance defense may prevent compensation in some areas of government regulation, “wetlands and endangered species land use limitations” will rarely be able to escape the bill’s mandate that government must pay to obtain compliance with the law.

A related bill in the House, though titled as a general “Private Property Protection Act,” applies only to what it calls “specified regulatory law,” which turns out to be the Endangered Species Act and the wetlands program, and several other programs affected by them.

Both the endangered species and wetlands laws embody important programs that deserve serious debate and careful consideration by Congress in the course of legislative reauthorization. They have recently been the subject of extensive administrative reforms designed to protect the legitimate rights of homeowners, and to provide incentives to owners who want to protect environmental values. But if these bills are enacted, no such niceties will need to be observed. We simply won’t have an endangered species or wetlands program to revise. They will have been downed by the stealth bombers of the 104th Congress.