Imagine a Neandrathal stumbling upon a luscious piece of trail-kill 30,000 years ago and debating whether to share it with his hungry tribe or eat it himself.
Would survival of the fittest have trumped his community’s needs? Or would he have recognized that food (like water) was a Neandrathal utility — a resource essential to the tribe’s survival — its consumption regulated with the common weal in mind? Would Neandrathal society have concocted some system of head thumps to ensure that fortunate ones shared with the hungry many?
Long-enshrined in our societal understanding of survival are two fundamental concepts that we treat with varying importance depending on the situation.
- “A chain is only as strong as its weakest link.” (Our community prospers when it fosters and defends the rights and strengths of its members.)
- “Ask not what your country can do for you — ask what you can do for your country.” (The strength of our community depends on the responsible generosity of its members.)
Some of the wildest and most contentious cases in Supreme Court history have attempted to resolve conflicts between individual rights and the community’s expectation that its larger, more inclusive interests will predominate.
In the earliest days of our Republic, Eminent Domain was recognized as a tool inherent to the Federal Government’s mandate to “defend and protect.” For the “public good,” soldiers were billeted in Colonial homes during the Revolution but seizure of private lands for permanent use was onerous to most early Americans and the “public use” restriction in the Fifth Amendment’s Takings Clause was strictly interpreted as a protection against such seizures.
As our population grew and technology created a more mobile citizenry, public works demanded more land for roads, bridges and railroads. In more recent years and in response to a landscape crammed full of skyscrapers, derricks, residential and shopping mall sprawl, eminent domain has been used to protect open space for public enjoyment. (The “public good” in this instance being protected from the narrower interests of a few developers.)
Of particular interest to us in the Delaware River Basin is the legal concept of “inverse condemnation” which we hear with increasing frequency from property holders demanding they be compensated when regulations prohibit gas drilling on their properties. According to a Fifth Amendment Annotation,** “While [the Fifth Amendment] established that government may take private property, with compensation, to promote the public interest, that interest also may be served by regulation of property use….‘The distinguishing characteristic between eminent domain and the police power is that the former involves the taking of property because of its need for the public use while [police power] involves the regulation of such property to prevent the use thereof in a manner that is detrimental to the public interest.’ 251 But regulation may deprive an owner of most or all beneficial use of his property and may destroy the values of the property for the purposes to which it is suited. 252 The older cases flatly denied the possibility of compensation for this diminution of property values, 253 but the Court in 1922 established as a general principle that ‘if regulation goes too far it will be recognized as a taking.”’ 254
Later, in a 2002 case, (Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency) The U.S. Supreme Court found that, “Moratoria on all development in Lake Tahoe Basin area for a period totaling 32 months, imposed by a regional planning agency while formulating a land use plan for the area, were not per se takings of property requiring compensation under the Takings Clause.”
In a seemingly oblique but related development, corporations attained “personhood” when The U. S. Supreme Court stated in Minneapolis & St. Louis Railroad Co. v. Beckwith (1889) “…corporations are persons within the meaning of the [Due Process and Equal Protection clauses of the Fourteenth Amendment]…. We admit also… that corporations can invoke the benefits of provisions of the constitution and laws which guaranty [sic] to persons the enjoyment of property, or afford to them the means for its protection, or prohibit legislation injuriously affecting it.” (Bold added for emphasis.)
As the trend toward condemnation of privately held lands has become more usual, eminent domain actions have increasingly benefited “corporate persons” in the guise of public interests. This trend occasioned public outrage in 2005, when The Court ruled in Kelo v. New London that privately-held property could be seized by a government and handed over to a private corporation for the public benefit — while said corporation stood to reap a boatload of profits.
I would never deny just compensation to landholders whose property is seized for the public good but as I write this, Congress has just launched an investigation into gas drilling practices and their potential harm to the environment. Perhaps we should await its findings before deciding that those practices are either legal or in the public interest, as NYS Senator Bonacic has contended.
In that context, NYS Senator John Bonacic, the Northern Wayne Property Owners’ Association (NWPOA) and energy corporations have begun a campaign of hostage-taking. In an “Alice-Down-The-Rabbit-Hole” logical warp, they have demanded that millions of people who depend on water from the Delaware River Basin and New York City Watershed pay landholders NOT to risk that water supply with a toxic soup of corporate fracking fluids.
“Bizarre-o!” as my friend Amanda might say. Or more elegantly, I refer you to Cliff Westfall’s analogy of a few days ago, “What if I decided to burn down the woods on my land, claiming it was the cheapest way to clear a field, with no concern for preventing its spread to my neighbor’s house? Of course the government could regulate that. The bottom line is this: the government may prevent you from doing things on your property when those actions would harm public welfare.” In further explanation of Mr. Westfall’s comparison, please understand that fracturing fluids used in gas drilling are injected underground, may travel as much as 6,000 feet and their direction is neither predictable nor controllable…like a forest fire.
It is inconceivable that Senator Bonacic and the NWPOA truly believe that in our current economic crisis any governmental entity (or body of taxpayers) has the means to pay the ransom. The national unemployment rate is blowing up in our faces. Tax revenues are plummeting. Small businesses are dying. Our infrastructure is crumbling and our children are moving back home and forsaking dreams of college. In the event NWPOA or some other organization of lessors prevails in a lawsuit demanding compensation for the value of their mineral rights, every taxpayer, student and worker who does not benefit from gas royalties will lose. And the sure winners? Drilling companies who stand in the background ready to reap the profits.
Given the latest U.S. Supreme Court decision which found in Citizens United v. Federal Election Commission — a la George Orwell’s Animal Farm — that some “persons” and their lobbyists “are more equal than others,” we should not doubt the risk faced by our water and our Republic.
And given the evolutionary demise of Neandrathal, I can’t help but wonder if he decided to eat the whole thing all by himself.
Urge the Delaware River Basin Commission and the US Congress to enact moratoria on drilling. It’s for the “public good” because, as more and more people are beginning to remember, “We cannot drink gas nor grow our food with it.”
* “…nor shall private property be taken for public use, without just compensation.”
** “In general, compensation must be paid when a restriction on the use of property is so extensive that it is tantamount to confiscation of the property.
In the Mahon case, Justice Holmes for the Court, over Justice Brandeis’ vigorous dissent, held unconstitutional a state statute prohibiting subsurface mining in regions where it presented a danger of subsidence for homeowners. The homeowners had purchased by deeds which reserved to the coal companies ownership of subsurface mining rights and which held the companies harmless for damage caused by subsurface mining operations. The statute thus gave the homeowners more than they had been able to obtain through contracting, and at the same time deprived the coal companies of the entire value of their subsurface estates. The Court observed that ”[f]or practical purposes, the right to coal consists in the right to mine,” and that the statute, by making it ”commercially impracticable to mine certain coal,” had essentially ”the same effect for constitutional purposes as appropriating or destroying it.” 255 The regulation, therefore, in precluding the companies from exercising any mining rights whatever, went ”too far.” 256 However, when presented 65 years later with a very similar restriction on coal mining, the Court upheld it in Keystone Bituminous Coal Ass’n v. DeBenedictis. 257 Unlike its precursor, the Court explained, the newer law ”does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners.” 258 Instead, the state had identified ”important public interests” (e.g., conservation, protection of water supplies, preservation of land values for taxation) and had broadened the law to apply regardless of whether the surface and mineral estates were in separate ownership. A second factor distinguishing Keystone from Mahon, the Court explained, was the absence of proof that the new subsidence law made it ”commercially impracticable” for the coal companies to continue mining. 259 The Court rejected efforts to define separate segments of property for taking purposes–either the coal in place under protected structures, or the ”support estate” recognized under Pennsylvania law. 260 Economic impact is measured by reference to the property as a whole; consideration of the coal placed off limits to mining as merely part of a larger estate and not as a separate estate undermined the commercial impracticability argument.
In a case examining a Moratorium imposed on development in the Lake Tahoe area, the U.S. Supreme Court has decided that a moratorium on development is not necessarily a taking, and that regulatory takings cases must be decided on a case-by-case basis rather than on categorical rules, Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S. Ct. 1465, 152 L. Ed. 2d 517 (U.S., Apr 23, 2002) (NO. 00-1167). …the Court held that because the regulation was temporary, it could not constitute a categorical taking.”