Perhaps the most ferocious political fight of the 1990s has been the ongoing struggle between environmental lobbyists and advocates of property rights over who should pay the costs of environmental regulation.
When government regulation leaves title with the owner but forces him toserve the public‐say, by requiring him to build and maintain a publicbicycle path across his land‐has his property been “taken” by the governmentand is he thus due compensation under the Takings Clause of the Fifthamendment? While it’s easy to understand why environmentalists don’t wantto pay property owners to make environmental sacrifices for the public (wemight, after all, reconsider our love of wetlands conservation if weactually had to pay higher taxes to preserve those swamps), recent action bythe Supreme Court points to the danger environmentalists face if theycontinue to fight tooth and nail against a commonsense understanding ofproperty rights.
The case in question is Borman et al. v. Kossuth County, Iowa. In1995 theKossuth County Board of Supervisors reclassified a residential neighborhoodas an “agricultural area” and allowed a large‐scale hog operation to startup 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‐lawnuisance suits‐prevented the homeowners from suing to protect their propertyfrom the foul stench of hogs. The homeowners argued that the laweffectively condemned their property without compensation and asked that thenuisance protection be thrown out.
The Iowa Supreme Court agreed with the homeowners, holding the right‐to‐farmstatute unconstitutional. “This is not a close case,” the court declared.“When all the varnish is removed, the challenged statutory scheme amounts toa commandeering of valuable property rights [the right to use and enjoyone’s property] without compensating the owners, and sacrificing thoserights for the economic advantage of a few.” After the U.S. Supreme Courtrefused to hear the case on appeal last month, the Iowa law was thrown outand 49 similar state right‐to‐farm laws are now in question.
One might think that this was a victory for environmentalism, butthe greenlobbyists in Washington has been oddly silent. Why? Because, according tothem, property rights must be balanced against the interests of the state.The state in this case believed that “farmland preservation” (the allegedrationale for right‐to‐farm laws) was more important than our right to befree from paint‐peeling hog odor in our living rooms and that we’re not dueany compensation if the government reaches that judgment. Moreover, thegreens vigorously oppose the idea that we have any such thing as a right touse or enjoy our property if the state has other plans for it. Accordingly,environmentalist lawyers can hardly cheer the Iowa verdict, no matter howsalutary from an environmental perspective, without undercutting their owncampaign against legislation that would compensate property owners forexactly those kinds of takings.
Ironically, it was the farm lobby‐the mortal foe of Washington’senvironmental establishment and the most vigorous supporter of pro‐propertyrights legislation‐that made the environmentalists’ case. “No physicaltaking is accomplished by the Iowa statute because no physical entry uponproperty has occurred or been authorized,” they argued in their amicuscuriae 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 somebroad and metaphysical sense, to characterize every burden on property forthe benefit of another” as a taking, but “that simply goes too far and wouldcreate a combination of economic burden and regulatory paralysis beyond thenation’s ability to accommodate or manage.” Too much of an economic burdenfor government, apparently, but not too much for individual landowners tobear.
In short, farmers embraced the same takings jurisprudence they hadfoughtvaliantly against for at least a decade, and hoped nobody would notice.Perhaps nobody did, since not once did any environmental leader publiclyreact one way or the other when the greens’ most sacred constitutionalarguments were employed to defend the right of polluters to pollute.
The lesson here is that the right to be free from pollution isinseparablefrom the right to use and enjoy our property. The constitutional rule isactually pretty simple: regulation aimed at preventing harm does not requirecompensation, whereas regulation intended to extract benefits does. Breakthat rule, and we’re in a political war of all against all. That’s not thebest way to protect the environment, as the homeowners of Kossuth County canattest.