As former Supreme Court
Justice Louis Brandeis put it, the states can serve as
“laboratories of democracy” by testing new approaches to see if
they might work for the nation as a whole. The idea is that if a
new approach falls flat, the rest of the country can learn from the
mistake without going through the same experience.
Unfortunately, state experiments sometimes fail, and politicians
still don’t learn the lesson.
A case in point is
Oregon’s Measure 37, a sweeping “takings,” or property rights
measure passed by Oregon voters in November 2004. The measure has
been a surprising disaster for Oregonians. Nonetheless, the U.S .
House of Representatives recently passed a bill amending the
Endangered Species Act that would convert Oregon’s isolated
mistake into national policy. By so doing, the House took an ax to
the law, effectively repealing the law as it applies to private
lands.
The Oregon measure requires the public to pay
landowners when regulations limit development. The measure applies,
subject to several narrow exceptions, regardless of how modest the
restrictions, or how small the economic impact on the owner.
The kicker is that the measure includes no funding
mechanism, and at the same time authorizes officials not to enforce
the law if they lack funds to pay claims. In less than a year, over
2,500 claims have been filed in Oregon under Measure 37. So far,
Oregon officials, with no room in tight budgets to pay the millions
of dollars in claims, have waived the law in every instance.
The result is that Oregon’s highly regarded
land-use protections are being shredded by proposals to place
billboards along scenic roadways, dumps in established communities,
and subdivisions in agricultural areas. It should be no surprise
that some Oregonians are beginning to express public regret for
having voting for Measure 37.
Now comes the House ESA
bill, passed on Sept. 29, that borrows Oregon’s “pay or
waive” approach. The bill requires the secretary of the Interior to
pay for the value of any use of private property restricted under
the Endangered Species Act. At the same time, the bill indicates
that the Interior secretary can avoid liability by simply not
responding to a landowner’s petition for a determination on
whether the law restricts use of the property. This odd
non-response would then give the owner or developer the signal to
go ahead.
Paying people to comply with the law is
fundamentally unfair. Under established law, wild animals that
happen to be present on private land still belong to the public.
That means that any landowner activities that injure or kill the
public’s wildlife infringe on public rights. Should a
trespasser, for instance, be able to seek financial compensation
for trespassing?
Paying landowners also would confer
unfair windfalls on developers at considerable taxpayer expense.
Just because a developer is not permitted to develop every square
inch of a property does not necessarily mean he will suffer an
economic loss; savvy developers treat conserved open space as an
amenity that can increase their profits. In addition, all of us,
including landowners, share in the benefits from the Endangered
Species Act, as well as other land use and environmental laws.
Finally, if the payment idea in the House bill were
actually implemented, it would encourage gaming of the system. It
would create an incentive for speculators to propose destructive
development projects on environmentally sensitive lands just to be
able to demand cash from the public.
Ultimately, however,
the worst aspect of the House bill is that it is designed to use
the threat that the public would have to pay developers to comply
with the law, not to actually secure payments, but as leverage to
gut the law.
As Oregon’s experience under Measure
37 shows, the pay or waive approach means, in practice, that the
law cannot be enforced at all.
Congress would undoubtedly
decline to pass a bill that clearly gutted the Endangered Species
Act, just as Oregon voters probably would not have voted to repeal
land protections in that state. But that is the likely effect, and
no doubt the intended consequence, of the present effort in
Congress to build on Oregon’s bad example.
John D. Echeverria is a contributor to Writers on the
Range, a service of High Country News (hcn.org).
He is the executive director of the Georgetown Environmental Law
and Policy Institute in Washington, D.C.
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