The (valid) concern over the eminent domain ruling in Kelo v. New London has been misappropriated for some truly awful purposes. Activists in several western states are using it to push the idea that regulations are “takings,” and are trying to block environmental regulation (or bankrupt states). As John Echeverria, executive director of the Georgetown Environmental Law and Policy Institute, told the Post, “The agenda behind these initiatives is to make it so expensive for local and state governments to regulate land use that they can hardly function at all.”
The underlying idea is based on the writings of Richard Epstein. Epstein argues that any time the government takes something from a citizen, through taxation or regulation, the government ought to give something of equal value to that citizen. It’s an attack on any sort of redistributive taxation, but most dangerously an assault on a wide range of regulation, including regulations on the environment and worker safety.
When the government restricts what sort of building you construct, Epstein would argue that it is taking something from you, and ought to compensate you for that taking. A conservative activist is bankrolling the effort to enshrine that bizarre notion in state laws. Where the idea was attempted, the state of Oregon has had to abandon enforcement of environmental laws to prevent bankrupting the state.
The problem with the logic is that rules which limit development don’t just affect the land-owner, they also affect the community as a whole. Having a greenbelt around a city makes everyone in the city better off. Decisions that affect only one person are not the proper place for government regulation. When one person’s decisions affect society at large, that’s where government ought to get involved. The costs of harming the public are aggregated through fees, taxes and fines.
These costs are easily seen in the plight of people in Abdjan, Ivory Coast. The New York Times reports how inadequate regulations on the disposal of hazardous waste led to waste being dumped in backyards, at great cost to the people.
Treating the waste properly would have cost thousands of dollars more. In a sense then, any regulation requiring adequate treatment of it would be a “taking,” but how many people would dispute the benefits of those regulations.