Tuesday, October 07, 2008

Maintaining Property Rights within the Context of Environmental Protection

Today, ACS joined the Federalist Society in presenting Maintaining Property Rights within the Context of Environmental Protection, a debate between Roger Pilon and Doug Kendall. Mr. Pilon is the founder and Director of the Center for Constitutional Studies at the Cato Institute. Mr. Kendall is the founder and Director of the Community Rights Council. (Mr. Kendall also spoke at a ACS event last year, Reclaiming Our Progressive Constitution.)

At the heart of the debate was under what circumstances the government should have to constitute property owners when enacting statutes that impact property owners' bundles of rights. Mr. Pilon spoke first and argued that when the government created regulations that limited how a property owner could use their property, this was a taking that must be compensated, unless the government was responding to a nuisance with external impact (as this would be an exercise of police power, not a taking). When the government is creating a new public good, he argued, it should not simply be billed to property owners by removing their property rights.

In his response, Mr. Kendall sought to demonstrate that at the crux of this debate about regulatory-takings is the fact that the relevant regulations are not simply removing sticks from property owners' bundles, but working towards important public protection. For example, he explained that in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the state statute limited Lucas' development rights in order to protect all property from increased risk of harm in the face of a hurricane. He also argued that framers did not view property rights as absolute, but saw them as moderated by overarching community concerns. In our modern extremely interconnected world, individuals' decisions to use their property in certain ways has tremendous impacts for our society as a whole, and these impacts should not be ignored when considering the extent of property rights.

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