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PRI's Environmental News Magazine

Eminent Domain and Takings

Air Date: Week of October 20, 2006

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Voters in four Western states will decide ballot initiatives next month that could profoundly change the regulation of private property. Host Jeff Young talks with Law Professor Jim Huffman about what that might mean for environmental protection and the ability to limit sprawling growth.

Transcript

YOUNG: Congressional and state offices aren’t the only things at stake this November.
Voters in Arizona, California, Idaho and Washington state will also decide ballot initiatives that could profoundly affect regulation of private property. Supporters say the new laws would protect property owners from government action that could take away or limit the use of land. They want to make government pay if a new regulation reduces property value. In legal jargon that’s called “takings.”

Others take aim at government’s use of eminent domain—that’s taking private property for public use. Here’s part of an ad from supporters of the item on California’s ballot. It’s called Proposition 90.

AD SOUND: After 50 years in our home, the government tried to take it away from us. They call it eminent domain. Imagine, our government taking our home and giving it to a developer!

YOUNG: Opponents say the new laws could bankrupt governments, cripple environmental protections, and bring more sprawling development. Here’s an ad they’re running in California:

AD SOUND: But it’s opposed by police, firefighters, environmentalists, business, labor, and taxpayers. More than 200 groups throughout California. Join them and vote no on 90. It’s a taxpayer trap.

YOUNG: We’ve asked an expert in constitutional and natural resource law to help us make some sense of this heated and often confusing debate. Jim Huffman is former Dean of the Lewis and Clark Law School, in Portland, Oregon.

Professor Huffman, thanks for joining us.

HUFFMAN: It’s my pleasure.

YOUNG: Professor Huffman, would these initiatives affect the ability of a state or local government to regulate to protect the environment?

HUFFMAN: Absolutely. They will have limiting effects on all kinds of regulation if that regulation impacts on property.

YOUNG: And how does that work? What’s the mechanism at play here?

HUFFMAN: Well, for example, if you had a law that was designed to protect endangered species, and a part of that regulation, the impact was that private property owners could not do certain things on their property that might impact on the endangered species, these measures presumably would require the government to pay for that diminished value that resulted from that regulation.

YOUNG: To make sure I understand this, so a state or local government would essentially be looking at a pretty high price tag in order to enforce the laws that are on the books?

HUFFMAN: That’s right. Although there’s a wide array of estimates that are made as to what it would cost. Here in Oregon we have such a measure, a compensation takings measure. So far, it doesn’t appear that that measure is having as widespread an impact as it was anticipated. I think there’s been about 3,000 claims filed. And the reality of it is, under the Oregon measure, that the government’s not paying anything because they have the alternative of waiving the regulation. That is not true in all of these pending measures. Some of them don’t give the government the option of waiving the regulation, which means they would have to come up with the money to pay for the diminished property value. And that could be very significant.

YOUNG: Apparently, as I understand it, part of the appeal of these initiatives for those signing the petitions, and, presumably, for those who might vote for them, is because of the interest in a recent Supreme Court case, a pretty high profile case from Connecticut that had to do with eminent domain. What role is that playing in these ballot initiatives’ battles out west?

HUFFMAN: Well, I think that that case, it was called Kelo against New London, Connecticut, I think that it has been a real stimulus for a focus on property rights. The Kelo case was about the use of eminent domain and that is what’s gotten the juices flowing politically. And it has, in all of these states, they have then piggybacked with that, the compensation measure which I think is much more significant, much more aggressive. So I think it has muddied the waters. And although they are both about property rights, they’re very different concerns with very different support groups, I think.

YOUNG: What I hear from the opponents to these initiatives is they see something a little more sinister at play in the scenarios you’re describing here. They see a kind of a larger effort to pretty much dismantle the regulatory mechanism. Do you see something like that at play here?

HUFFMAN: Well, I think that’s part of what’s at play. The interest groups supporting this, I think, are basically anti-regulation interest groups. But I think what has gotten this thing off the ground and made it a cause that’s been picked up all across the country is the concern about individual property owners. I think those facts in the Kelo case are what really what got this ball rolling. So I don’t think...I think it’s a mistake to conclude that this is all about a sort of a national top-down conspiracy to limit regulation. It’s partly that, but I don’t think we would be in the position we are in with these measures having a fair probability of passing, if there weren’t this grassroots concern among individual property owners that, but for the grace of God, there go I into this regulatory pit and lose the value in my property.

YOUNG: If these ballot initiatives do have some success come November, do you think we’re going to see more of these? Is this the start of a trend here?

HUFFMAN: I think so. I’ve watched the property rights movement for 25-30 years and I would say they’re on a high right now and I think they won’t stop with this.

YOUNG: Well, thanks for speaking with us today, Professor Huffman. Professor Huffman is former Dean of Lewis and Clark Law School and an expert in constitutional law and natural resource law. Thanks again.

HUFFMAN: You’re very welcome.

 

Links

Idaho property owners

California Voter Guide

California No on Proposition 90

California Yes on Proposition 90

Washington No on Initiative 933

Washington Yes on Initiative 933

 

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