Tenant Law
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THE DREADFUL PROPOSITION 98, PART II -- Gutting Environmental and Land Use Law for Private ProfitWednesday, April 30, 2008
If passed, Proposition 98 would change our California Constitution to make environmental and land-use regulations – even those enacted for the health, safety and welfare of the public or to preserve our fragile environment – invalid or too expensive for the State to implement and enforce. The law would add a “regulatory takings” clause to the Constitution, which (in addition to wiping out tenant protections as Ken outlined in Part I) would require the government to pay owners for any arguable decrease in their profits caused by environmental or land-use regulation.
Even if the regulated activity is harmful to the health of the citizens, the community and the environment, this change in our Constitution would allow owners to claim their absolute right to engage in such activity, and to demand that taxpayers compensate them for their total lost profits which are "taken" from them when by regulations which limit, control or prevent their ability to engage in the activity. While the regulations attempt to limit how much certain moneyed interests can exploit and damage our shared land and resources, these same interests would be able to cry about losses due to the regulations, and force the government to pay them to keep from polluting! The law would be so stacked that nearly every regulation for health, safety and the environment would become too costly for Government to enforce, and the right to maximum profit would rise above and squash the Californians’ rights to sensible planning, clean air, environmental preservation and more. The owner could go so far as to sue to invalidate the very regulations which protect our resources, our land, our air and our water.
According to a legal analysis of Prop 98 by the law firm of SHUTE, MIHALY & WEINBERGER LLP (prepared for and made available by the California League of Conservation Voters Education Fund), regulations which could be invalidated by greedy property owners and business, or which could become a legal means for such profiteers to extort endless sums from California taxpayers include the following:
Proposition 98 would also negatively effect our ability to protect rare species and their habitats, to protect wetland areas, to protect water quality, air quality, and to protect and limit our exposure to hazardous substances.
Because such regulations impose “costs” on big polluters and make green companies and industries more competitive with dirty and exploitative corporations, Prop 98 would have all of us subsidize the polluters for their increased costs and decreasing business, or would allow them to invalidate the regulations so they could exploit, pollute and damage the environment without restriction. No matter how small or how large the alleged “costs” of the regulation, regulated owners and businesses could extort money from the State indefinitely, and would have no incentive to seek more productive and less damaging ways to make money. Worse, the ambiguities intentionally placed in this measure will lead to protracted legal battles over nearly every proposed environmental statute, rule or regulation, tying up time government resources in the courts and further preventing the implementation and enforcement of important controls and protections.
This initiative goes even farther than the defeated Proposition 90 of 2006 in allowing corporations, polluting industries and large landowners to undo and prevent environmental regulations in California. It was a bad idea then, and the voters rightly rejected it. Prop 98 is an even worse idea now. We must not let it become law and to unravel our important tenant, environmental and land use protections.
If passed, Proposition 98 would change our California Constitution to make environmental and land-use regulations – even those enacted for the health, safety and welfare of the public or to preserve our fragile environment – invalid or too expensive for the State to implement and enforce. The law would add a “regulatory takings” clause to the Constitution, which (in addition to wiping out tenant protections as Ken outlined in Part I) would require the government to pay owners for any arguable decrease in their profits caused by environmental or land-use regulation.
Even if the regulated activity is harmful to the health of the citizens, the community and the environment, this change in our Constitution would allow owners to claim their absolute right to engage in such activity, and to demand that taxpayers compensate them for their total lost profits which are "taken" from them when by regulations which limit, control or prevent their ability to engage in the activity. While the regulations attempt to limit how much certain moneyed interests can exploit and damage our shared land and resources, these same interests would be able to cry about losses due to the regulations, and force the government to pay them to keep from polluting! The law would be so stacked that nearly every regulation for health, safety and the environment would become too costly for Government to enforce, and the right to maximum profit would rise above and squash the Californians’ rights to sensible planning, clean air, environmental preservation and more. The owner could go so far as to sue to invalidate the very regulations which protect our resources, our land, our air and our water.
According to a legal analysis of Prop 98 by the law firm of SHUTE, MIHALY & WEINBERGER LLP (prepared for and made available by the California League of Conservation Voters Education Fund), regulations which could be invalidated by greedy property owners and business, or which could become a legal means for such profiteers to extort endless sums from California taxpayers include the following:
– Regulation of greenhouse gas emissions under AB 32 and other laws to limit global climate change and protect communities from the dangerous effects of climate change;(SEE http://www.ecovote.org/no98yes99/smw-letter-re-jarvis.pdf)
– Regulations that protect coastal areas, forestland, farmland, and ranchland, as well as cultural and historic sites;
– “Smart growth” regulations designed to promote compact, walkable, and transit oriented communities that combine residential and commercial land uses; and
– Ordinary zoning regulations, such as restrictions on the development of polluting industry, adult businesses, and “big box” megastores.
Proposition 98 would also negatively effect our ability to protect rare species and their habitats, to protect wetland areas, to protect water quality, air quality, and to protect and limit our exposure to hazardous substances.
Because such regulations impose “costs” on big polluters and make green companies and industries more competitive with dirty and exploitative corporations, Prop 98 would have all of us subsidize the polluters for their increased costs and decreasing business, or would allow them to invalidate the regulations so they could exploit, pollute and damage the environment without restriction. No matter how small or how large the alleged “costs” of the regulation, regulated owners and businesses could extort money from the State indefinitely, and would have no incentive to seek more productive and less damaging ways to make money. Worse, the ambiguities intentionally placed in this measure will lead to protracted legal battles over nearly every proposed environmental statute, rule or regulation, tying up time government resources in the courts and further preventing the implementation and enforcement of important controls and protections.
This initiative goes even farther than the defeated Proposition 90 of 2006 in allowing corporations, polluting industries and large landowners to undo and prevent environmental regulations in California. It was a bad idea then, and the voters rightly rejected it. Prop 98 is an even worse idea now. We must not let it become law and to unravel our important tenant, environmental and land use protections.
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