PRIVATE PROPERTY & PUBLIC RIGHTS

`Property Owners Bill of Rights' is an attempt to undermine environmental laws and help developers and mining and timber companies

IF only ``truth in labeling'' laws applied to bills introduced in Congress.

Rep. W. J. (Billy) Tauzin (D) of Louisiana and his allies in Congress have declared an all-out war on the Endangered Species Act (ESA) and the Clean Water Act. He says his proposal, HR 3875, would protect ``property rights,'' yet the real effect of Mr. Tauzin's proposal would be to undermine existing protections for public health, safety, and the environment. Ironically, his bill would weaken private and public property rights; it would undoubtedly benefit some developers, timber companies, and mining interests. But it would force a rollback of key environmental protection and set a precedent that could undermine other vital legislation, harming the overwhelming majority of Americans.

Tauzin's bill, the Private Property Owners Bill of Rights, is unnecessary. According to the United States Supreme Court, whether government action is a ``taking'' requiring payment depends on a number of factors: the purpose of the action; its economic impact; the owner's expectations when the property is purchased; and the character of the regulation.

Tauzin's bill requires the taxpayer to pay property owners whenever regulation under the ESA or the Clean Water Act reduces the value of only a portion of property by 50 percent or more. It ignores, for example, how the regulation protects public health or whether the purchase is speculative. Did the buyer know full well that regulatory restrictions applied? The bottom line is that the Tauzin bill would fundamentally rewrite the traditional law and would impose a major new burden on the federal Treasury.

Under the Constitution, developers are generally responsible for avoiding injury to other property owners and public resources. They do not have to be paid. But the Tauzin bill would make the implementation of the law more expensive, leading to less enforcement.

In a candid speech at the conservative Heritage Foundation this spring, Tauzin acknowledged that his bill ``will bankrupt us.'' On the bright side, Tauzin argued, the expense would force Congress to weaken the ESA and the Clean Water Act. So much for his support of the goals of both!

Virtually every piece of legislation affects the value of property to some degree. But Tauzin's bill singles out only these two environmental programs. Clearly, he is opposed to them, but he hides his real aim behind the ``property rights'' slogan.

He and others repeatedly rely on exaggerated anecdotes, such as the much-publicized charge that ESA contributed to the loss of homes during the California fires last year. A recent General Accounting Office report found that this loss of homes was not related to the ESA.

The real beneficiaries of Tauzin's bill would be developers and big industries, who have the money and clout to protect their interests. Interestingly, Tauzin receives more than double the House average in campaign contributions - and more than 95 percent from businesses. In practice, only wealthy landowners with legal counsel could take advantage of the elaborate procedures for filing claims for payment under the bill.

Moreover, Tauzin's proposal would actually undermine the rights of most Americans. The real ``takings'' involve the homeowner flooded by development upstream, the farmer whose land has been contaminated by pollution, and the community whose property values have plummeted as a result of a poorly sited landfill. Wildlife is a public resource like the air or rivers, and we must protect it not only for ourselves but for future generations. Traditional property rights protect the public's rights and balance the value of all property.

Our environmental laws can stand improvement, both to increase environmental protection and to make the laws' procedures more fair and efficient.

Neither of these worthy goals, however, will be furthered by Tauzin's effort to destroy both our environmental laws and the balanced protection for public and private rights that we enjoy in this country.

* Peter A. A. Berle is the president and chief executive officer of the National Audubon Society.

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