WASHINGTON A heated battle over the legal definition of "takings." which threatens to sidetrack a slew of environmental bills. will get even hotter in 1995 if conservatives win more seats in Congress this fall, government officials said yesterday.
Central to the debate is the question of when government regulation becomes so onerous that it constitutes a taking of private property that requires compensation under the Constitution's Fifth Amendment.
In one case, for example, a Massachusetts municipal utility alleged that the state encouraged investment m a regional power plant, then delayed licensing the facility because of safety concerns. The utility claimed that its resulting economic losses should be compensated under the Constitution.
Nearly two dozen property fights bills were introduced during this session of Congress that call on federal agencies to assess the implications of proposed actions for property values or to compensate property owners beyond what is required under the Constitution.
Fights over property rights language are threatening to detail pending legislation to reauthorize the Clean Water Act. the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and other environmental statutes, according to Robert Meltz, legislative attorney at the Congressional Research Service.
Last May, the Senate adopted a weakened property fights amendment to the Safe Drinking Water Act that requires federal agencies to do a "taking impact analysis" before issuing any policy, regulation, proposed legislation, or related agency action that is "likely" to take private property. Exceptions included formal condemnations, treaty negotiations, and law enforcement.
The Clinton Administration strongly opposes property rights bills because they go too far, said Peter Coppelman, deputy assistant attorney general at the Justice Department.
"Everything the government does carries the possibility that private property values will be affected," but the administration opposes a "one-sizefits-all" approach to such a complex issue, Coppelman said at a briefing sponsored by the Environmental and Energy Study Conference, a congressional caucus, that he and Meltz attended..
The administration supports the case-by-case approach of the Supreme Court, Coppelman said.
Last May, Office of Management and Budget director Leon Panetin told Congress that "there are no simple single-bulle.t answers" to the issue, Coppelman noted. The proposed legislation providing for more compensation ignores important factors in weighing whether.property value has been diminished by a government action, such as the reasonable expectations of landowners, Coppelman said.
The administration also opposes bills focusing on "process," or assessments" of proposed actions, because they would result in "enormous and unnecessary paperwork," Coppelman said.
The National Conference of State Legislatures is among the many groups opposing property rights legislation. In a resolution adopted July 28, the group said it opposes any national legislation or regulation that tries to define or categorize "takings" under the Constitution, or that interferes with a state's ability to do so in cases involving state compensation. The states agreed with the administration that a case-by-case approach should be adopted.
"One might have guessed that congressional interest in the property rights issue would taper off in 1993" because of the arrival of the Clinton Administration and the retirement of a key congressional proponent of property rights legislation, Idaho Republican Steve Symms. Meltz said in a Congressional Research Service report released Friday.
But instead, the number of bills and "the decibel level of the debate increased noticeably," the report said.
The interest arises from the perception that government programs are becoming more restrictive of the use of private property to-achieve congressionally mandated goals, Meltz said at the briefing.
Also feeding interest are recent Supreme Court cases extending greater protection to property owners and a growing recognition by certain constituencies that the issue can be a powerful tool to cut back environmental and other government programs, he said.
The main constituencies Meltz identified are: landowners who feel threatened: developers, farmers, ranchers, and extractive industries with an economic stake in unfettered use of land; and people who endorse limited-goveminent philosophies, including conservatives and libertarians. "The widely held view is that if the new Congress is more conservative, then the issue will be back stronger next year," he said.
The lower courts decided 31 takings cases in 1993, with only two decisions finding that a taking had occurred, Meltz's report said. Cases m previous years had a similar pattern, showing that while the legal philosophy on takings in the Supreme Court and federal judiciary apparently shifted toward more protection for property owners, "the totals for actual taking rulings do not yet reflect this," the report said.
