When government regulation leaves title with the owner but forces him to serve the public‐say, by requiring him to build and maintain a public bicycle path across his land‐has his property been “taken” by the government and is he thus due compensation under the Takings Clause of the Fifth amendment? While it’s easy to understand why environmentalists don’t want to pay property owners to make environmental sacrifices for the public (we might, after all, reconsider our love of wetlands conservation if we actually had to pay higher taxes to preserve those swamps), recent action by the Supreme Court points to the danger environmentalists face if they continue to fight tooth and nail against a commonsense understanding of property rights.
The case in question is Borman et al. v. Kossuth County, Iowa. In 1995 the Kossuth County Board of Supervisors reclassified a residential neighborhood as an “agricultural area” and allowed a large‐scale hog operation to start up next to a number of homes. At the same time, the Iowa “right‐to‐farm” law‐a statute that for the most part immunized farmers from common‐law nuisance suits‐prevented the homeowners from suing to protect their property from the foul stench of hogs. The homeowners argued that the law effectively condemned their property without compensation and asked that the nuisance protection be thrown out.
The Iowa Supreme Court agreed with the homeowners, holding the right‐to‐farm statute unconstitutional. “This is not a close case,” the court declared. “When all the varnish is removed, the challenged statutory scheme amounts to a commandeering of valuable property rights [the right to use and enjoy one’s property] without compensating the owners, and sacrificing those rights for the economic advantage of a few.” After the U.S. Supreme Court refused to hear the case on appeal last month, the Iowa law was thrown out and 49 similar state right‐to‐farm laws are now in question.
One might think that this was a victory for environmentalism, but the green lobbyists in Washington has been oddly silent. Why? Because, according to them, property rights must be balanced against the interests of the state. The state in this case believed that “farmland preservation” (the alleged rationale for right‐to‐farm laws) was more important than our right to be free from paint‐peeling hog odor in our living rooms and that we’re not due any compensation if the government reaches that judgment. Moreover, the greens vigorously oppose the idea that we have any such thing as a right to use or enjoy our property if the state has other plans for it. Accordingly, environmentalist lawyers can hardly cheer the Iowa verdict, no matter how salutary from an environmental perspective, without undercutting their own campaign against legislation that would compensate property owners for exactly those kinds of takings.
Ironically, it was the farm lobby‐the mortal foe of Washington’s environmental establishment and the most vigorous supporter of pro‐property rights legislation‐that made the environmentalists’ case. “No physical taking is accomplished by the Iowa statute because no physical entry upon property has occurred or been authorized,” they argued in their amicus curiae brief. Moreover, the “incremental economic effects” of a regulation, such as one that results in once‐inhabitable homes becoming uninhabitable, does not amount to “a physical invasion.”
The farm lobby did grudgingly confess that “it may well be correct, in some broad and metaphysical sense, to characterize every burden on property for the benefit of another” as a taking, but “that simply goes too far and would create a combination of economic burden and regulatory paralysis beyond the nation’s ability to accommodate or manage.” Too much of an economic burden for government, apparently, but not too much for individual landowners to bear.
In short, farmers embraced the same takings jurisprudence they had fought valiantly against for at least a decade, and hoped nobody would notice. Perhaps nobody did, since not once did any environmental leader publicly react one way or the other when the greens’ most sacred constitutional arguments were employed to defend the right of polluters to pollute.
The lesson here is that the right to be free from pollution is inseparable from the right to use and enjoy our property. The constitutional rule is actually pretty simple: regulation aimed at preventing harm does not require compensation, whereas regulation intended to extract benefits does. Break that rule, and we’re in a political war of all against all. That’s not the best way to protect the environment, as the homeowners of Kossuth County can attest.