OPINION/COMMENTARY

Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case

[T]wo Port Chester [New York] property owners joined with the Institute for Justice (the public-interest law firm that litigated the Kelo case) to ask the Supreme Court to look again at the issue of eminent domain abuse and ensure that lower courts do not read Kelo to completely eliminate judicial review. The case illustrates the dangerous results of the Kelo decision and asks what should be an easy question: Does the Constitution prevent governments from taking property through eminent domain simply because the property owners refused to pay off a private developer? In 2003, private developer [Gregg Wasser] approached Bart Didden and Domenick Bologna with a modest proposal: they could either pay him $800,000 or give him a 50 percent interest in their proposed business, or he would cause the Village of Port Chester to take their property from them through eminent domain. Outraged, they refused. The Village condemned their property the very next day. Bart and Domenick filed suit in federal court, arguing that the taking violated the Fifth Amendment of the U.S. Constitution, which only allows property to be taken for a “public use.” Shockingly, the trial court threw out their case, and the Second Circuit agreed. Because their property lay within a “redevelopment area,” a region the Village had designated as subject to its eminent domain power, the Constitution didn’t protect them from condemnation, even though they had alleged that they were condemned solely because they resisted the developer’s attempted extortion.... “What the developer and Village of Port Chester did is nothing short of government-backed extortion,” said Didden. “I had an agreement to develop a pharmacy, a plan fully approved by the Village, and in the eleventh hour I was told that I must either bring this developer in as a 50/50 partner or pay him $800,000 to go away. If I didn’t, the City would condemn my property through eminent domain for him to put up a pharmacy. What else can you call that but extortion? I hope the Supreme Court sets things right.” The crucial legal issue involves an ambiguity in Kelo. It's not clear whether or not Kelo permits pretextual condemnations within "redevelopment areas." Kelo held that condemnations for "economic development" purposes should get nearly absolute deference from judges so long as they are part of an "integrated development plan;" moreover, courts are not supposed to "second guess" the quality of the plan, so even very poor plans that have little chance of achieving their objectives and blatantly favor private interests can still immunize condemnations from challenge. However, Kelo also emphasized that "pretextual" takings - where the stated public interest rationale is just a cover for the true purpose of benefiting a "private party" - are still forbidden. In an important concurring opinion to the 5-4 decision, Justice Kennedy called for heightened judicial scrutiny of condemnations where there is a legitimate suspicion of "favoritism" towards a private party....


Polar Bear Meltdown?

This week the Bush administration proposed to list the polar bear as “threatened” under the Endangered Species Act. It’s a futile gesture that only signals a weakening in the Bush administration’s heretofore strong stance against global warming hysteria. The proposal resulted from a lawsuit settlement the Bush administration reached in February with Greenpeace and the Natural Resources Defense Council. In return for these groups dropping their effort to force the Bush administration to grant polar bears “threatened” status under the ESA, the administration agreed to commence a rulemaking to list the bears. This doesn’t sound like much of a “deal” – and it’s not. Though the proposal doesn’t legally bind the Bush administration to list polar bears as threatened and the proposal will simmer for at least 12 months during which time the administration says it will seek more information and public comment, based on the fanfare accompanying the proposal’s roll-out, it seems the listing is all but final. Rather than issuing the proposal in a tentative and low-key manner, Secretary of the Interior Dirk Kempthorne issued a media release and reigned over a press teleconference where he and the director of Fish and Wildlife Service (FWS) touted the proposal. But they quickly lost control of the affair – not to mention their message. The major issue at the press conference became not whether the polar bear was truly endangered, but whether the rulemaking was a signal that the Bush administration was beginning to melt on global warming. Before we get to the dominant issue of the press conference, however, let’s first answer the key questions raised by the proposal. Are polar bears endangered? What would the proposal accomplish, given that we already protect polar bears under several laws and treaties? There are no data indicating a downward trend in U.S. or global polar bear populations – that’s according to the FWS’ own fact sheet for the proposal. There apparently are some reports of lower-weight polar bears and reduced cub survival in certain areas, but there are no firm explanations for these reports and their significance is unknown....


The Eminent-Domain Origin of Shenandoah National Park

The establishment of Shenandoah National Park in 1926 is one of the greatest abuses of eminent domain in our country’s history. With the Commonwealth of Virginia condemning the entire area and removing more than 450 families, many by force, the park would eventually encompass 196,000 acres. After people were evicted, Virginia transferred the property to the federal government and Shenandoah National Park was born. The history books have forgotten the episode, but it is one that needs to be remembered. Just as with politics today, the main force behind the establishment of Shenandoah National Park (SNP) was a special-interest group, for it was not a federal bureaucracy that pined for the park but local Virginians themselves. In 1924, the secretary of the Interior had established a committee to investigate a potential site for a national park in the southern Appalachians. Knowing that it would be a boon to tourism, many residents in the Shenandoah Valley of central Virginia began lobbying for the park to be located there. That same year, nearly 1,000 local residents gathered in Harrisonburg and established Shenandoah Valley, Inc., whose slogan was “A National Park Near the Nation’s Capital.”... The bill that Coolidge signed stipulated that no federal funds could be used to acquire the land the park would comprise. The job of obtaining the land therefore fell to the Commonwealth of Virginia. The idea of buying the land from the owners was immediately ruled out, as it was thought too difficult an undertaking... It is clear that government officials at the time considered these property owners as nothing more than obstacles. Their concern was not for their rights, but simply for the difficulty that they would present in bringing the national-park project to fruition. Indeed, many people, including the press, thought they were doing the property owners a favor by running them off their land. The general consensus was that the people who inhabited these mountains were living as animals and needed to be civilized. National Park Service official Arno Cammerer stated, “There is no person so canny as certain types of mountaineers, and none so disreputable.” SNP official James R. Lassiter stated in 1935 that residents suffered from a lack of “independence and resourcefulness” and from their “dependence on outside help.” So in order to avoid the slow and painful process of negotiating prices with each landowner, Virginia passed the Public Park Condemnation Act. The act simply confiscated all the lands that would make up the park. Officials then formed a three-man committee to assess the value of each property that the owner would be paid. Once the condemnation had been signed into law, the next task was to remove the inhabitants....


Don’t Tell Anybody But We Can All Breathe Easier Now

A lot of people have a vested interest in making you think air pollution is getting worse. Rather than put themselves out of jobs, air quality regulators make standards for safe levels of pollution stricter — continuously. In response, environmental reporters ladle out bad news about what SUVs are doing to the lungs of our children, hyperbolize about the occasional mid-summer ozone violation by this city or that, or distill reports by groups like the American Lung Association that get funds through fear-mongering. But please, gentle reader, know this: Air pollution is at an all-time low. And this fact is made all the more incredible by another fact: There are more vehicles on the road than ever. According to a new National Center for Policy Analysis report by environmental scientist Joel Schwartz, we can all breathe a little easier now. Consider some of these stunning highlights. Between 1980 and 2005: * Fine particulate matter dropped 40 percent. * Nitrogen dioxide levels decreased by 37 percent, sulfur dioxide decreased by 63 percent, and CO concentrations by 74 percent. * Lead levels dropped 96 percent. * Peak eight-hour ozone levels declined 20 percent, and days-per-year exceeding the eight-hour ozone standard fell 79 percent....


ENERGY DIET FOR A STARVING WORLD?

Former Vice President Al Gore considers it immoral to oppose the Kyoto Protocol, energy taxes or other coercive schemes to curb carbon dioxide (CO2) emissions linked to global warming. But in reality, it is immoral to put an energy-starved world on an energy diet, says Marlo Lewis, senior fellow at the Competitive Enterprise Institute.

Energy poverty is a scourge, shortening the lives and impairing the health of untold millions of people around the globe, says Lewis. For example:

* An estimated 1.6 billion people lack access to electricity, and some 2.4 billion people still rely on biomass -- wood, crop waste and dung -- for cooking and heating.
* Daily indoor air pollution in energy-poor countries is much dirtier than outdoor air in the world's most polluted cities and kills about 2.8 million people a year, most of them women and children.

Even in the United States, high energy prices inflict hardship on low-income households. Millions of families already feel pinched by the high cost of gasoline, natural gas, and home heating oil. A Kyoto-style system would push energy prices even higher.

Overall, there is no known way to meet the developing world's energy needs without increasing use of CO2-emitting fossil fuels, says Lewis. Forcing developing countries to go on an energy diet would condemn them to decades of continuing poverty, backwardness and misery.

Source: Marlo Lewis, "Energy Diet for a Starving World?" Washington Times, January 2, 2007.

For text:
http://www.washingtontimes.com/commentary/20070101-111214-3977r.htm