Take A Look At The Map

Henry Ingram, Esq. Article Appears in the Pennsylvania Landowner - June 1993
Take a Look at the Map

After several years, Pennsylvania landowners are coming to realize that “environmental regulation” involves not just pollution prevention. In the early days environmental regulation, the thrust was to control pollution of our streams and Air and limit the indiscriminate use and disposal of toxic materials and other substances which might create health hazards. The direct cost of “First generation” pollution-control measures was assigned to the private sector industries whose activities created the potential pollution. These costs by and large could be passed on to consumers of goods and products manufactured by these industries.

Gradually, as water discharges and smokestack emissions were “Cleaned up,” attention turned to clean-up of polluted sites (land areas adversely affected by past industrial or waste disposal activities). The cost of subsequent initiatives to clean-up or, to use a fancy word, “remediate” polluted sites turned out to be enormous and both private industry capital and our tax dollars were tapped to fund the clean-up costs.

The trend that has emerged in the last decade is to control the natural environment in such a way that no pollution or environmental harm will occur. An unfortunate corollary has also emerged–that mere land use and development itself is the functional equivalent of environmental harm.

The first truly burdensome example of this trend in Pennsylvania came with wetlands protection enforcement at both the state and federal level beginning about five years ago. Readers of the Landowner are already well familiar with the excesses’ in the wetlands protection programs and all levels of the bureaucracy. To briefly reiterate a long story; about 75% of all wetlands are located on private property and about 100% of the wetlands regulators don’t want to see any wetlands, however created or important, disturbed in any way. Lip service is paid to the “Theoretical” possibility that an ordinary citizen could get a permit to fill a wetland but for all practical purposes only large, well-financed developers, who can afford the tremendous costs involved, have any chance to secure “official” authorization to disturb a wetland of any size.

Now, landowners must recognize that other modern “environmental” programs are intended to and in fact have the same effect on privately owned lands as wetlands preservation does. The terms used in the titles of the Acts creating these programs disguise their coverage and impact on ordinary citizens. For example, implementation of the Endangered Species Act of 1973, The Wild and Scenic Rivers Act of 1968, the Federal Eastern Wilderness Act, the Historic Sites Act (protecting “Natural” landmarks) and even the Coastal Zone Management Act, can all affect dramatically private property rights in Pennsylvania. These new preservationist initiatives are not limited to Glacial National Park or some isolated river in Maine. It is going on in your backyards.

What is happening is the regulatory programs under these Federal Acts are extending their “No disturbances” tentacles throughout rural and otherwise undeveloped areas of Pennsylvania. If some species is declared “Endangered” by a federal bureaucrat and a particular species can (not does) live on or near your land, you are affected and your right to use your land as you choose is endangered, perhaps even more than that bureaucrats newly identified species.

The same is true if you own land in or near a Wild and Scenic River corridor or which contains a natural landmark your rights are diminished.

Many of you have learned that “Rails to Trails” doesn’t just mean a few hikers in the real backwoods areas where a railroad abandons a line. It can mean serious intrusions on the peace and tranquility of your communities. We have also learned that Congress was all too willing to “suspend” your reversionary interest in the abandoned railroad rights-of-way to pander to recreationists who in turn were all too willing to take something (your rights) for nothing. The same is true for these other preservation programs.

On the preservationist front, Pennsylvania environmental bureaucrats usually march in lockstep with their federal counterparts (although Pennsylvania is often the head of the federal beat).

We have parallel programs and all these trendy, new areas of anti-development regulation and our bureaucrats often seem to be watering at the mouth to do their federal big brothers one better. In terms of getting ahead of the beat, even the Feds haven’t come up with Special Protection Watershed designations which can eliminate all development in a given area. These are state-of-the-art anti development/preservationist devices.

And what you have to be sure to recognize is that all these programs are directed at private property, not just public lands.

Our elected officials have given land-use control bureaucrats broad powers over your property and the hordes of preservation police roaming around these days is just that–enforcement officers with real police powers. Readers of the Landowner know that violations of these regulations can lead to serious fines and jail terms which seem to be, and often are, more stringent than those imposed on drug pushers, drive-by shooters and stock-fraud con men. Do you ever get the feeling the “system” is out-of-balance?

These programs are based on the political philosophy which would intentionally restrict one of our most fundamental freedoms and ultimately erodes the underpinnings of the free enterprise system. Nevertheless, you must also recognize there are probably no evil motives involved here–by and large persons inside and outside of government who subscribe to the anti-development/preservationist philosophy believe they are acting in the best interests of everyone. Although they won’t admit it, they just have the view that they can make better choices about the use and development of private property than the ordinary citizens who own it can.

As layer after layer of land use regulation-wearing a cloth of Environmental Protection-is added, the resulting diminuation in land value-referred to previously in the Landowner as a hidden tax-has the effect of redistributing wealth in this country-just as surely as taking your wealth by a direct tax does.

If the government takes money from you and me in taxes and gives it to somebody else-say in the form of government subsidized health care, we know what is going on. We recognize this for what it is-a transfer payment which has become the hallmark of the modern welfare state. We also recognize, if we think about it, the question of what percentage of our wealth the government should transfer as a political question (most of us would agree that as a general moral or ethical proposition, taking something from the strong and wealthy and giving it to the weak and poor is not wrong).

However, already burdened with increasingly higher taxes, high crime rates, violence in our streets and the bloated bureaucracy which spends a large amount of its time cramming down our throats its ideas (about which there is no true consensus.) as to how people should live their lives and order their own affairs, we now wake up to find ourselves shackled by intrusive preservation regulations which are impairing our fundamental freedom to own and use private property.

Hopefully there is some reason to believe that ordinary citizens still have the ability to take a stand and draw the line if things get too bad. For example, Jimmy Carter was turned out of office apparently when a majority of people got fed up with a high reading on the misery index. Somehow it translated into a revolt against a profligate tax and spend government and inside-the-beltway arrogance. After a decade or so of Reaganomics, we have sent ourselves back into the tax and spend cycle and more intrusive government (although in fairness to the electorate it would have been hard for the ordinary Joes among us to figure out that Candidate Clinton’s remonstrates about “cutting taxes and the deficit” really meant increasing both!)

I make the point here because burgeoning land-use regulations and preservationist programs must be understood for what they are. They impose hidden taxes ordinary citizens, effect transfers of private wealth and shackle individual freedom by eliminating choices among uses to which privately-owned land may be put. Forget about right and wrong. It is extremely difficult to attack, morally or ethically, a particular government imposed choice; for example, choosing to “Save” spotted owl habitat rather than preserving timber industry jobs. Or why should a Landowner give up the right to use his land to protect habitat just so scientists can learn a little bit more about how organisms become different species-one of “usual” justifications for “protecting” an endangered species. The trouble is that both choices may be good, just as, viewed alone, increasing the level of health care for people who can’t pay is good. The problem at the present moment is that the choices being made are being made by persons (elected officials) who have apparently tested the political wind and decided it is blowing in favor of the anti-development/preservationist philosophy, just as sometimes in the past it has blown in favor of the welfare state/transfer payment to philosophy. Apparently in today’s political climate, the selection between two “Good” choices is not going to favor landowners and others who have to earn a living by putting their land to use and for whom the free enterprise system is the machine which enables them to earn those livings and take care of their families. In the land-use area the winds continue to blow the wrong way for the Landowner. At the moment the voices of those who subscribe to anti-development, preservationist philosophy are the loudest and property rights are in peril. You can’t expect to get anywhere on moral or ethical grounds. This is a political battle. It is a situation with the ordinary citizen must stand up and be counted. The line must be drawn.

1. Because there has been “Selective” enforcement of wetlands regulations, particularly against individuals who are perceived is challenging the “System,” and plain old “Looking the other way,” unauthorized wetlands fills abound in Pennsylvania. Hopefully some of the “Looking the other way” is motivated by recognition of the unfairness of wetlands preservation enforcement on private land.
2. In coming months PLA will be holding information meetings and graphically identifying on a map areas of Pennsylvania which are affected by anti development, preservationist land-use control regulations.

Pennsylvania Landowners’ Association, Inc.

P.O. Box 391

Waterford, PA 16441

Phone: 1.814.796.4023