Demanding Payment for Good Behavior

By EUGENE LINDEN

Advocates for the wise use movement have come up with some pretty loopy ideas -- among them, a scientifically silly proposal to halt global warming by clear-cutting ancient forests. But one of their radical notions has been getting a friendly hearing from the courts, Congress and the Bush Administration. The idea, which could ultimately cost state and federal governments billions, is that private landowners are constitutionally entitled to compensation when a government imposes environmental restrictions on how their land may be used. Citing the clause in the Fifth Amendment that bars the government from taking private property "without just compensation," scores of landowners and developers are now seeking remuneration.

In the past, the Supreme Court has rejected these pleas. But it may reconsider the issue this spring when it takes up the case of Lucas v. South Carolina Coastal Council. Real estate developer David Lucas bought two lots on the Isle of Palms in 1986 with the intention of building houses on them. Two years later, new state regulations proscribed building so close to the ocean. Lucas did not challenge the state's claim that beachside construction would cause erosion and threaten the stability of nearby homes, but he did seek compensation for his investment. A lower court awarded him $1,232,387.50, the price he paid for the land plus interest and taxes. The state successfully appealed, arguing that its regulations did not amount to depriving the developer of his land.

It is easy to sympathize with Lucas, though land values can also be enhanced by environmental and zoning restrictions. But a broad decision by the Supreme Court would be disastrous for the principle of environmental regulation. It would open the door to a wave of demands for compensation from citizens and companies affected by everything from rules protecting wetlands to restrictions on critical habitats for endangered species.

A decision in favor of property rights could leave state governments with a double bind, says Brian Gray, a University of California specialist in environmental and property law. If the state imposes new regulations to protect vital ecosystems or species, it risks a slew of suits for compensation; but if it does not act, it could be sued for failing to protect the public trust.

And where is the Bush Administration during this threat to the principle of environmental regulation? It has sided with Lucas. Some conservative legal ^ theorists and their supporters within the Administration would welcome a reinterpretation of property rights that would also open the way to eviscerating health, safety and zoning as well as environmental regulations.

This reassertion of private-property rights comes at a time when society is becoming ever more aware of the ways in which actions in one part of the landscape affect the economic and ecological well-being of other areas. If the U.S. were still a sparsely populated country with vast wilderness areas, it would matter less what one individual did with his or her property. Says Erik Meyers of the Environmental Law Institute: "The freedom to swing your arms stops at your neighbor's nose, and what has happened is that noses have got a lot closer together." In such circumstances, it seems odd to pay people to pull their punches.