by Free Press Staff
As you read this, one of the most insidious anti-environmental measures in the history of this nation is moving toward becoming law. Initiative 164 would greatly expand the definition of property rights to define any government action that erodes the value of land in any way as a "taking" requiring monetary compensation. This would effectively gut most of the State's environmental laws.
Because this measure was presented as an initiative to the legislature, once it passed both Houses it was not subject to the governor's veto. Now there is only one way to prevent I-164 from becoming law: the collection of enough signatures by July 20 to put Referendum 48 on the ballot, which will put I-164's provisions before the voters. Then Referendum 48 must be voted down in November.
Initiative 164 washed into the state legislature on a huge tide of cash put up by developers and the Timber industry. Among the top contributors to this campaign were Boise-Cascade, Plum Creek, Simpson Timber, the Building Industry Association, and the Washington Association of Realtors. This cash bought paid signature gatherers who quickly collected over 230,000 signatures, many of which turned out to be forgeries. Although an unprecedented 47,000 signatures were invalidated, the Secretary of State ultimately certified the measure.
This measure takes legal balances between individual and community interests in land use that have evolved over decades, even centuries, and creates a radical new standard whereby private rights to profit on land are protected above all else. If enacted this measure will gut the Growth Management Act (GMA), make it almost impossible for government to rezone land, and make habitat preservation prohibitively expensive. For the Puget Sound region, it means a great intensification of urban sprawl and the loss of farm and forest land, as little Spanaways crawl their way up the foothills of the Cascades along all major arterials.
The legislation would require a comprehensive study of all property value impacts of any changes in land use. This puts a huge procedural barrier against all state regulations designed to achieve environmental protection. Suppose, for example, that the state decides to prohibit logging on slopes of a certain steepness in order to prevent mudslides and excessive erosion which is destroying salmon runs. Under this law, in order to do this it must first map all steep slopes in every county in the state, and inform every landowner of the proposed regulation. If it then decides to proceed with regulation, payments must be made to every landholder within three months of the ruling. This is the case even if the owner had no intention of selling the land, or if the owner's intended use was actually compatible with the new regulations.
The only exceptions to these payment provisions would be those defined legally as "public nuisances." But legal experts note that the legal definition of "nuisance" is a very restricted one. While it might allow government to prevent a nuclear plant from being placed in your neighborhood, it is likely that other types of zoning designed to contain sprawl, preserve farmland, or set aside ecologically fragile lands would be subject to the requirement for payments. Initiative 164 also throws in a nice little plum for the timber industry by requiring taxpayers to pay up whenever a buffer zone is created around a stream.
This measure has been sold as a grassroots response to big government. But while the property rights movement surely has grassroots elements, the origins, momentum and current direction of the movement are provided by elite special interests. This version of "takings" doctrine was cooked up not by some farmer besieged by a bureaucrat, but by a far-right law professor at the University of Chicago. In the early 1980s, Professor Richard Epstein pushed his novel (not "traditional") doctrine - whereby any loss of value was seen as unconstitutional - on the Reagan administration, which then appointed sympathetic judges who have been handing down new rulings conforming to this extreme view.
At the same time, right-wing legal foundations funded by corporations provided the firepower for challenging government regulations all over the West. The ultra-conservative Heritage Foundation - an inside-the-beltway organization if there ever was one - provided monetary and ideological support. During the 1980s "Sagebrush Rebellion," various conservative legal foundations (which have given us such environmental luminaries as James Watt) took up the cases of selected landowners who were fighting against government regulation.
Soon afterwards, members of various extractive industries, particularly mining and grazing, put up the cash to fund the "Wise Use" movement which seeks to ensure a pro-industry tilt on public lands. Locally, many independent property rights organizations were founded by developers angry that county or city governments were imposing new regulations to preserve the environment or control sprawl.
These same interests are hitching their campaign to a few tales of poor grannies deprived of their "nest egg" because government wanted to save a little bit of swamp. While it is clear that the big boys are cynically using these stories to manipulate public opinon, there is truth to a few of them. While many regulators are sensible and well-meaning, a few blockheads have done great harm by enforcing regulations rigidly even in cases where environmental damage would be minimal. They thus helped to create more opposition given the inevitably conflictual time when land designations were changed to protect wetlands, or to conform to the GMA.
But fixing these problems with this bill is like digging a ditch with an atomic explosion. Much more reliable measures for achieving effective administration of environmental and planning laws are already in the works. First, although Democrats never get credit for trying to streamline regulations, this is exactly what has been happening under the Lowry administration. Legislation to speed land use permits by harmonizing the GMA and the State Environmental Policy Act came out of a Lowry-appointed commission, and has just been passed by the legislature and signed by the governor.
But these changes don't necessarily help the small land holder, and there is still room for more "user friendly" regulation. Regulators should speak softly, focus on education, try to enforce regulations for the least cost - but they should also carry a big stick. Preventing the Los Angelesization of the Puget Sound area requires stronger laws, if anything, not weaker ones. Initiative 164, by raising the costs of even the most sensible regulation to exorbitant levels, shifts the balance to the point where almost nothing can be done.
If this becomes law, the resulting acceleration of environmental destruction will impose huge costs on the rest of society. As most regulation becomes prohibitively expensive, salmon streams will be decimated, flooding will increase because of the loss of wetlands, and your quality of life will be eroded as the entire region comes to resemble one big Anaheim.
When government does decide to protect an ecological resource, you will be paying through the nose for it. A whole new cadre of environmental speculators will will be likely to spring up, buying land just before it is to be "downzoned" in order to extort the maximum amount out of the taxpayers. This bill would spawn a whole new army of lawyers who practice getting rulings which put a maximum value on a supposed "alternative use."
At the same time, government regulations which increase the value of property won't get similar treatment. For example, if developers get a windfall profit because of new zoning for greater density, they get to pocket all the increase in value. And they will continue to demand that the taxpayers subsidize urban sprawl by building new sewers, roads, and schools in rural areas. This is precisely the wasteful pattern the GMA was designed to prevent. The same "free market" timber companies who oppose environmental guidelines will continue to demand that the Forest Service and the state provide them with corporate welfare in the form of logging roads.
US land use is already tilted toward protecting speculative profits. In Europe, the purely speculative gains caused by changes in land designations are taxed back at the time of sale. I-164 is the private profits protection act, ensuring that all environmental measures enrich a select few lucky enough to have developable property. The rest of us will become serfs in this latter-day feudalism, as more and more of our taxes go to the lords who own the land.
There are no shades of gray in this battle. This is an unbelievably bad bill. Perhaps you're one of the three-quarters of Americans who support environmental protection, and have been sending in your check dutifully to one or more green groups for years, all the while thinking "I really should do more." Well, now is the time to take that next step. The attached resource box contains addresses and phone numbers of the No on 164 campaign, and most of the major groups opposing the initiative. Sure, send a check, but don't forget to call and get some petitions, attend rallies, etc. Let it not be said that Washington was the state that really got the ball rolling in a whole new era of environmental destruction.
For petitions, call or write:
To make a contribution, write a check to:
Or volunteer with the following coalition members:
Audubon Society (523-4483)
American Association of University Women (621-0758)
Coalition for a Livable Washington (524-1557)
Common Cause (360 352-4446)
League of Women Voters (622-8961)
People for Puget Sound (382-7007)
Puget Sound Council of Seniors (448-9646)
Sierra Club (625-1381)
Washington Assoc. of Churches (525-1988)
Washington Chapter, American Planning Association (682-7436)
Washington Environmental Council (622-8103)
Washington Environmental PAC (632-7440)
Washington Citizens for Recycling (343-5171)
Washington State Democratic Central Comittee (583-0664)
Washington State Labor Council (281-8901)
1,000 Friends of Washington (343-0681)
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Contents on this page were published in the June/July, 1995 edition of the Washington Free Press.
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Copyright © 1995 WFP Collective, Inc.