The federal government has undermined private property rights in the name of the environment, but protecting the environment and protecting the rights of landowners go hand in hand.
"The growth of federal land-use regulation over the past two decades has sparked a firestorm of grassroots opposition," says Jonathan Adler of the Competitive Enterprise Institute. "Landowners around the country are upset with their government for denying them the reasonable use of their land in the name of protecting endangered species, maintaining 'wild and scenic' rivers, preserving wetlands, and establishing national parks." Adler says there is "broad public support for current environmental laws," but there is also "strong public sentiment in favor of compensation for regulatory takings." In other words, Americans believe in protecting the environment against despoliation, but they also believe in protecting the landowner against expropriation. Americans believe that landowners should be reimbursed for any losses caused by environmental regulations.
Although "literally dozens of federal statutes and programs restrict the nonharmful use of private property," two federal laws all by themselves account for "the lion's share of regulatory takings," says Adler, citing the Endangered Species Act and Section 404 of the Clean Water Act as the major culprits. Seventy-five percent of threatened species "rely upon private land for some or all of their habitat," and most officially designated wetlands are held privately. "Thus, as long as the federal government continues to rely upon regulation to conserve these resources, widespread conflicts with private landowners are inevitable."
"The proper aim of federal government efforts to protect 'the environment' is to prevent the imposition of harmful substances upon unconsenting persons and their properties; and, failing that, punishing those who transgress against others in this manner," Adler contends. "Pollution is a 'trespass' or 'nuisance' under the principles of common law. Environmental statutes should not supersede common law protections, as most have, but rather reinforce them."
Adler points out that "'public goods' such as military bases and highways are created by purchasing lands from private owners. On the other hand, 'public goods' like wetland preserves and wildlife refuges are created by bureaucratic edicts that deny property owners the use of their land. This is not how it should be," Adler insists. "If the public wants to protect the habitat of an endangered species or preserve an ancient stand of trees for some aesthetic, spiritual, or broad 'environmental' value, then the public should be willing to pay for it, just as it pays for other 'public goods.'" The current landowner should not be expected to absorb the loss.
Adler maintains that property rights are "important for both economic and environmental reasons, and must be protected from both government regulation and private malfeasance. Compensating landowners when they are deprived of the reasonable use of their land will not produce environmental catastrophe. Far from it. In many cases, it will eliminate the negative environmental incentives created by the heavy hand of existing government regulations."
