Eminent Domain or Imminent Disaster?

AL MEYERHOFF, an environmental attorney in Los Angeles, is past director of the Natural Resources Defense Council's public health program.

IT WAS in early 1990 when I and a few others crafted California’s Proposition 128 — the environmental initiative later known as “Big Green.”

Redwoods were in, so was recycling; pesticides were banned, as was new offshore oil drilling. It was heady stuff. Like now, the environment was “hot” — not from global warming but rather from the disasters of Bhopal, Chernobyl and the Exxon Valdez.

Opinion polls showed Big Green could not lose. Then the economy stagnated and Iraq invaded Kuwait. Big Green went down, part of the Big No in the November elections.


But over the years, environmentalists also have had their successes at the polls — most notably in 1972 with Proposition 20, which established the California Coastal Commission that is still safeguarding our magnificent coastline. And Proposition 65, passed in 1986, created tough new standards for about 300 toxic chemicals, reducing exposure to many of them in our air, water and consumer goods.

Now the environment is on the ballot again, in November.

Most of the attention and the money has focused on the pro-environment measure, Proposition 87, which would tax oil companies to finance a program to develop clean energy.

But it is an anti-environment “stealth” measure, Proposition 90, that, if passed, would have the greatest environmental impact on the average Californian. This measure would eviscerate many environmental, land use, zoning and planning laws — state and local — and change the face of the state.

Proposition 90 ostensibly would bar local governments from condemning private property to promote private uses. But this poorly drafted and radical measure is not the eminent domain reform it purports to be. It is actually a dagger pointed at California environmental protections (such as those established by the Coastal Commission). If enacted, any regulation (other than health and safety) said to have any impact on any property — real, personal or intellectual — could trigger claims for compensation to be paid by taxpayers.

For example, Californians could be “billed” for compensation related to such regulations as zoning standards preventing garbage dumps in residential neighborhoods; coastal permits prohibiting unrestricted development of beaches and marine reserves; or bans on offshore oil and gas drilling.

Proposition 90 is a sleeper, bankrolled mainly by libertarian Howie Rich and Americans for Limited Government as part of a nationwide attempt to turn back the clock on the role of government in our society.


A new and similar Oregon law has already resulted in $5.2 billion in claims, including one from a property owner claiming rights to construct a mine inside the Newberry Volcanic National Monument.

This measure is opposed across the board — by environmentalists, labor and the state Chamber of Commerce, by taxpayer associations and consumer groups, by scientists and public health agencies and the California Farm Bureau. But as the election gets closer, voters will be flooded with ads admonishing them to “Protect your home — Yes on 90.”

Virtually no intelligent conversation can be had amid such noise.

Thus there will be no open and honest debate on the two very different visions raised by Proposition 90. Under one vision, we are all in this together, agreeing to use, enjoy and preserve California’s magnificent natural resources as a public trust — a concept of the “commons” grounded in Roman law. We enter into this social contract because, as President Kennedy once told us, “in the final analysis … we all inhabit this small planet. We all breathe the same air. We all cherish our children’s future. We all are mortal.”

Under the other vision, we are each in this alone, free to exploit resources for profit or personal use — or be paid by the California taxpayer not to do so.

Here’s an idea. Instead of all those ads, let the environmentalists pick their spokesperson and the measure’s supporters choose their champion. They can then go on radio talk shows, local TV news shows, public TV and radio and even just meet the public. Let each talk about the pros and cons of “too much” or “too little” government regulation. Let each examine what California would look like without laws to preserve the coast, protect the trees and safeguard the water supply.

Let them discuss what kind of future we want.