Takings

I spent most of the 1990s studying global environmental politics. At one point, I was going to write a paper about the so-called "wise use movement" largely active in the western US. These are the libertarians and conservatives who fight government environmental regulations using populist rhetoric. The wise use movement is largely funded by large transnational corporations, especially those that buy animal grazing rights, mining leases, etc. from the federal government at below market prices. Some also manufacture off-road vehicles. Rev. Sun Myung Moon's Unification Church also funds the "movement."

The wise use movement is against government "takings" of private property.

They cite the Fifth Amendment to the US Constitution, which states in part: "nor shall private property be taken for public use, without just compensation." That clause is the basis for the concept of eminent domain, which allows government entities to take land for public projects by paying property owners the land's fair market value.

Typically, they argue that environmental regulations decrease private land values (by limiting uses) and thus constitute illegal government takings. Owners are not compensated for the theoretical future value of the developed land. Indeed, since they ordinarily keep their land, owners may not be compensated at all for the regulatory limits on its development.

The same crowd is against zoning restictions in some areas of the country, but most people accept those sorts of limits on property uses.

Anyway, I never wrote the "wise use" article, but have remained interested in takings. Back in January/February, Mother Jones published an article on local government use of eminent domain power to take private property in behalf of private developers. In other words, homes or businesses are being condemned and taken to build malls and condos.

That too is government "takings" and conservatives should be upset, right?

Apparently, they are!

Today, as the NY Times reported, the Supreme Court said these "takings" are A-OK:

The Supreme Court ruled today, in a deeply emotional case weighing the rights of property owners and the good of the community, that local governments can sometimes seize homes and businesses and turn them over to private developers.

It was a 5-4 decision, with Justice Stevens writing the decision. He was joined by Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

This means that conservative Justices Rehnquist, Scalia and Thomas were outvoted. Ordinarily, that's a good thing, but this is an interesting case because a lot of local government officials seem to be in bed with developers who are looking out more for personal profit than the public interest.

Developers are the ones sending the mixed message. They won today, but they side with the western wise use crowd against government "takings" when regulations limit their ability to develop certain kinds of property (like wetlands).