OPINION/COMMENTARY

The Shifting Sands of the Clean Water Act

In the 1980s, Rapanos bought a 175-acre cornfield across from the old Dow plant and prepared it for development by leveling the property. When his grading equipment hit the concrete foundation of an old farmhouse that had been on the site, he took a natural sand pile and spread it over the concrete. That incident 20 years ago is why John Rapanos now faces jail time; that's why his family and companies face bankruptcy, and why the property remains undeveloped. This startling story is just another chapter in Clean Water Act (CWA) enforcement. Passed over President Nixon's veto in 1972, the CWA prohibits the "discharge of any pollutant into navigable water" without a federal permit. The language seems reasonable enough, but the statute has become a charter for federal control over the most local of decisions: real estate development, road building, driveway construction, even farming operations. The law doesn't seem to apply to John Rapanos' land, which consists of cornrows and a damp forest 20 miles from the nearest navigable waterway. But contorted interpretations of terms like pollutant and navigable water have made Rapanos' property as "navigable" as the mighty Mississippi. The pollutant Rapanos discharged wasn't oil, or nuclear waste, or chemical sludge: just sand. But the Clean Water Act doesn't distinguish between "pollutants," and it covers everything from solid waste to rock, sand, and even heat. In one case, federal regulators required Oregon ranchers to plant trees to block sunlight — which is a pollutant under the CWA....

ANWR: This is Not a Drill

Although the energy bill Congress recently passed doesn’t address the issue, drilling for oil on the coastal plain of the Arctic National Wildlife Refuge (ANWR) in Alaska is sure to come up in budget discussions. Given the current energy situation in the United States, as well as our relationship with overseas oil providers, it’s imperative that we find the oil in ANWR and bring it back. Both sides have presented their “facts” on the issue, but if one looks at ANWR’s true pluses and minuses, it’s obvious that people in Alaska, as well as those in the Lower 48, would benefit from extracting these oil reserves. The current proposal before the House of Representatives would allow for exploration on 2,000 of the 19 million acres of ANWR. These do not have to be contiguous and can be connected by pipelines. However, this acreage is limited to the 1.5-million-acre coastal plain. Given these numbers, we would “sacrifice” 0.01 percent of the refuge for the benefit of between 5.7 and 16 billion barrels of oil, according to the Energy Department. This oil would be pumped south through the existing Trans-Alaskan Pipeline, which can carry as much oil as we import from the Persian Gulf every day. Taking the mean estimate of 10.4 billion gallons of oil in ANWR, opening the area for exploration would allow the pipeline to pump at full capacity for 24 years, giving the U.S. a reserve amount that would allow for freedom to supplement our importation of oil with this supply....

Michigan Landowner Wins Historic Case

An attempt by an environmental group to intervene in a lawsuit involving the right of an owner of lakefront property in the Upper Peninsula of Michigan to use her property as allowed by Michigan law was denied by the U.S. Court of Appeals for the Sixth Circuit on July 28, 2005. The case had been pending at the Sixth Circuit for more than six years when the Forest Service abandoned its appeal earlier this year. Thereupon, the environmental group asserted that it had the right to intervene to enforce federal law. The lakefront property owner, Kathy Stupak-Thrall, argued, in a brief filed in May 2005, that the group lacked the legal right, “standing,” to do so. “We are delighted that the Sixth Circuit agreed with Ms. Stupak-Thrall,” said William Perry Pendley of Mountain States Legal Foundation, which represents Ms. Stupak-Thrall. “We are ecstatic that, after all these years, Ms. Stupak-Thrall won the final victory that she deserved. Our hat is off to her for her courage and perseverance.” Kathy Stupak-Thrall owns property on the northern edge of Crooked Lake in Gogebic County, Michigan. Under Michigan law, she has the legal right to use the entire surface of Crooked Lake so long as her use does not unreasonably interfere with the rights of other lakefront property owners. One of those owners is the U.S. Forest Service, which owns a majority of the remaining property that surrounds the wide and meandering lake. In 1987, Congress adopted the Michigan Wilderness Act in which it designated the Forest Service land, part of the Ottawa National Forest, as federal wilderness in accordance with the Wilderness Act of 1964. Both the 1964 statute and the 1987 statute protect “valid existing rights,” like those of Stupak-Thrall. Nonetheless, shortly after enactment of the Michigan Wilderness Act, the Forest Service adopted rules barring the landowners from using Crooked Lake. Ms. Stupak-Thrall’s first lawsuit, regarding her right to use sailboats, ended in a 7-7 ruling by the Sixth Circuit. Then, in March 1996, Ms. Stupak-Thrall sued the Forest Service when it sought to prevent her from using gas-powered motorboats on Crooked Lake. In December 1997, the District Court held that the Forest Service could not restrict her use of her property, that is, the surface of Crooked Lake....

The Energy Bill: It Could Have Been Worse

With Congress returning home for its summer recess, analysts are taking stock of the 1,724-page energy bill legislators passed last week on their way out the door. The press seems to be of the opinion that the bill did too little to address fundamental energy problems. That's an observation worth celebrating, not jeering. Past Congressional attempts to address "fundamental energy problems" resulted in an array of price controls, fuel-use restrictions, ambitious crash energy projects, and anti-profit regulation. The fact that Congress ignored such approaches this time around -- even in the face of higher energy prices -- is worth a few moments of grateful reflection. That's not to say that the Energy Policy Act of 2005 is good public policy. The legislation is premised upon the idea that energy markets are different from other markets and that they require political micromanagement. But price signals play the same role in the energy sector that they play in the rest of the economy. Unfortunately, neither Congress nor the public is content to leave energy choices to producers and consumers. Tax subsidies and regulations create investment and consumption patterns that would not exist if decisions were made by market actors. The good news is that this energy bill is radically different from those once routinely passed by Congress when energy prices rose....

Restricting Eminent Domain

In the wake of the Supreme Court's Kelo vs. New London decision, state and local governments are taking action to restrict the use of eminent domain for economic development purposes. To assist elected officials in these efforts, Reason Foundation has made available a variety of tools that can serve as a starting point toward eminent domain reform. Based upon the Institute for Justice’s model eminent domain legislation, these documents offer sample legislation and resolutions to curb eminent domain abuse, while also allowing public-private partnerships to thrive.

Possible Language for State Statutes Limiting Eminent Domain Abuse

One simple way to remove the threat of eminent domain for economic development is simply to delete the statutory authorization for such uses of eminent domain. For example, in 2004, Utah simply removed the authorization for eminent domain from its act giving powers to redevelopment authorities. Authorizations for eminent domain for private business generally appear in statutes dealing with economic or industrial development, redevelopment, and municipal powers.

Alternatively, a few possible approaches to a statute that would prevent the use of eminent domain for private development appear below.

Three other types of provisions that also discourage the abuse of eminent domain are (1) allowing a former owner to regain ownership of condemned property if the government fails to use it within a given period of time; (2) time limits on blight or redevelopment designations; (3) attorneys fees for condemnees challenging the validity of takings.

Requiring Eminent Domain for Public Use and Defining Public Use

Notwithstanding any other provision of law, neither this State nor any political subdivision thereof nor any other condemning entity shall use eminent domain unless it is necessary for a public use.

Public use: The term “public use” shall only mean the possession, occupation, and enjoyment of the land by the general public, or by public agencies; or the use of land for the creation or functioning of public utilities or common carriers such as a railroad, utility, or tollroad; the acquisition of property to cure a concrete harmful effect of the current use of the land, including the removal of public nuisances, structures that are beyond repair or that are unfit for human habitation or use, and the acquisition of abandoned property. The public benefits of economic development, including an increase in tax base, tax revenues, employment, general economic health, shall not constitute a public use.

Prohibiting Eminent Domain for Private Business

Notwithstanding any other provision of law, neither this State nor any political subdivision thereof or any other condemning entity shall use eminent domain to take private property without the consent of the owner to be used for private commercial enterprise, except that property may be transferred or leased (1) to private entities that are common carriers such as a railroad, utility, or tollroad; (2) to private entities that occupy an incidental area within a public project, such as a retail establishment on the ground floor of a public building; (3) the use of eminent domain eliminates a threat to public health or safety, such as the removal of public nuisances, removal of structures that are beyond repair or that are unfit for human habitation or use, or acquisition of abandoned property. Whenever property is condemned and will be used by a private party, the condemnor must establish by clear and convincing evidence that the condemnation of the property is necessary.

Prohibiting Eminent Domain for Economic Development and Defining Economic Development

Notwithstanding any other provision of law, neither this State nor any political subdivisions thereof nor any other condemnor shall use eminent domain to take private property without the consent of the owner to be used for economic development. Whenever property is condemned and will be used by a private party, the condemnor must establish by clear and convincing evidence that the condemnation of the property is necessary.

Economic Development: The term "economic development" means any activity to increase tax revenue, tax base, employment, or general economic health, when that activity does not result in (1) the transfer of land to public ownership; (2) the transfer of land to a private entity that is a common carrier, such as a railroad, utility, or tollroad; or (3) the transfer of property to a private entity when eminent domain will remove a threat to public health or safety, such as the removal of public nuisances, removal of structures that are beyond repair or that are unfit for human habitation or use, or acquisition of abandoned property; (4) the lease of property to private entities that occupy an incidental area within a public project.

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