Protecting wetlands, destroying freedom

Published May 1, 2002

Anti-business groups, smart-growth advocates, anti-market environmentalists, and NIMBY (not in my backyard) activists are organizing around the country to back state legislation to “protect wetlands” in the wake of a U.S. Supreme Court ruling that limits the federal government’s authority over wetlands.

In Illinois, for example, the Openlands Project is asking its supporters to lobby for the Wetlands Protection Act, a bill pending in the Illinois House. The legislation is necessary, the action alerts says, because “many of [Illinois’] remaining wetlands are now vulnerable after a United States Supreme Court decision eliminated federal protection over them.”

Oh really?

The court decision at issue, SWANCC v. U.S. Army Corps of Engineers, handed down on January 9, 2001, found the Corps had over-reached its statutory authority to regulate “navigable waters” by attempting to stop development of land adjacent to wetlands and seasonal ponds that were plainly not navigable. Federal authority to protect wetlands on federal land and adjacent to rivers and lakes remains intact.

The court’s decision did not leave wetlands in Illinois or other states unprotected. Land use historically has been regulated by private property rights, markets, tort law (laws concerning trespass and nuisance), and local governments. These four institutions contain all the rules and incentives necessary to protect the environment and ensure that one person’s use of his land does not interfere with his neighbor’s same right.

Anyone who owns a home or commercial property manages that property with an eye toward its resale value. We personally suffer a financial loss, either at the time of sale or when we attempt to tap the value of the property as collateral for a loan or line of credit, if we fail to properly maintain it. The same is true with recreational, scenic, or ecological value to others. Hundreds of millions of acres of forests and wetlands in the U.S. are protected by private property owners so they can be enjoyed by current and future generations.

If our land use activities interfere with the right of our neighbors to enjoy their property, we can be sued and forced to change our conduct, pay for the damage we’ve caused, or both. In cases where development of wetlands might cause flooding or other problems for nearby properties, recourse can be had through local planning authorities as well as the courts.

Private ownership of property also ensures that valuable wetlands and other natural sites are preserved voluntarily, by those who value them, rather than via the roulette wheel of politics. Private ownership works because it ensures that the costs and benefits of development are borne or enjoyed by those responsible for making the decisions. If the authority of government is needed at all, it is best exercised locally, by elected officials who are more accountable to voters and more likely to have knowledge of local facts and opportunities than state legislatures or federal bureaucracies.

The Wetlands Protection Act is a radical departure from this liberty-based system of private ownership and local governance. It would authorize the state to impose a fee of $1,000 per acre being developed, require buffers of at least 50 feet between development and a wetland, and demand at least 1.5 acres of wetlands be created or restored for every one acre developed.

These rules assume that someone other than the individual land owner actually “owns” the property, and therefore has the right to decide how to use it. There is a name for this doctrine of “social” property rights: feudalism. It prevailed in Europe for many centuries, discouraging trade and commerce and elevating privilege over individual freedom. It was finally overthrown in the 17th century by the doctrine of natural rights, which held that private property is so important to individual liberty that it must remain outside the control of the state. The doctrine of natural rights is enshrined in the Declaration of Independence.

The folks who are backing these Wetlands Protection Acts may enjoy dreaming that the environment can be protected by taking rights away from private property owners and giving them to the state. But the history of feudalism and more recently the former Soviet Union demonstrate that “social” property does not work. People do not invest in maintaining property they do not own, and people who do not bear the consequences of errors do not make decisions wisely. Violating private property rights disrupts the incentives and undermines the basic freedoms that made us a prosperous country.

A year ago, the U.S. Supreme Court struck a blow for property rights. State governments should not be allowed to undo this small victory.

Joseph Bast is president of The Heartland Institute.