Talking Points

“Government hardly could go on...”

• In the famous words of Justice Oliver Wendell Holmes, “Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law.”
• An October 2000 report analyzing the fiscal impacts of a takings measure on state and local government in Oregon found that the measure, if interpreted to require the city of Portland to pay to enforce its urban growth boundary, could cost the city over $3 billion annually.(1)
• The takings agenda, including the threat of billions of dollars in takings compensation claims, threatens to undermine the ability of government to adopt any new rules and regulations to address threats to public health and the environment.

The takings agenda undermines environmental and public health laws.

• The takings agenda specifically undermines environmental legislation, land use laws, and rules and regulations designed to protect public health.
• If the public had to pay polluters not to pollute, there would be a great deal more pollution and the quality of the environment would be undermined. Wetlands, for example, filter our drinking water and provide a buffer against flooding. Clean air laws protect the air that we breathe from such industries as confined animal feeding operations (CAFOs).
• Without strong environmental and public health laws, a number of things could occur, including the contamination of air and water by CAFOs, increased flooding due to the loss of wetlands, and the loss of forest land.

Both landowners and the community benefit.

• The takings agenda largely ignores the fact that effective regulatory measures enhance the value of private property.
• Pro-takings arguments tend to focus on the effect of a regulation on a particular owner and a particular property; but, most environmental and land use laws apply to a broad cross-section of the community.
• While particular property owners may be burdened by restrictions, they simultaneously benefit from the application of the restrictions to their neighbors and others in the community.
• Thus, for example, a landowner may be burdened by a restriction barring the filling of wetlands, but he or she benefits from application of the same regulation, in the form of reduced risk of flooding, improved water quality, and more abundant wildlife.

Givings vs. Takings

• The alleged takings that result from government restrictions should be balanced against the givings that flow from other government programs.
• Certain farmers complain, for example, about regulatory restrictions, which they claim limit their ability to make the most profitable use of their property. But farmers receive many billions of dollars in taxpayer-funded subsidies each year paid for by the U.S. taxpayer. These subsidies (and many other kinds of public investments) directly increase the value of private property.
• Because the public creates a significant portion of the value of private property in this country, it is arguably only fair to ask owners to exercise some restraint in their use of the land to protect the broader public interest.

The takings agenda is anti-homeowner.

• Ironically, property rights legislation actually undermines the property rights of most property owners in America.
• The single most important real property assets in this country in terms of value are Americans’ family homes. Over two-thirds of all families own their own homes.
• The value of a home depends in significant part on its location and, in particular, on the quality and character of the surrounding community. Land use and environmental laws protect community environmental quality values.
• Because the takings agenda threatens these laws, it threatens the property rights of the majority of Americans.