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Global Warming and your property
Posted by: mcq on Wednesday, June 20, 2007

Kimberley Strassel gives us another reason why the pending Energy bill needs to be defeated:
Broadly, the bill fulfills one big ambition of environmental groups in recent years: a rollback of any smarter use of public (or even private) lands for energy use. Gone are previous gains for more drilling, more refineries, more transmission lines. But the big prize was an unprecedented new power allowing green groups to micromanage U.S. lands. That section creates "a new national policy on wildlife and global warming." It would require the Secretary of the Interior to "assist" species in adapting to global warming, as well as "protect, acquire and restore habitat" that is "vulnerable" to climate change. This is the Endangered Species Act on steroids. At least under today's (albeit dysfunctional) species act, outside groups must provide evidence a species is dwindling in order for the government to step in. This law would have no such requirements. Since green groups will argue that every species is vulnerable to climate change, the government will be obliged to manage every acre containing a bird, bee or flower.

It's a green dream come true, carte blanche to promulgate endless regulations barring tree-cutting, house-building, water-damming, snowmobile-riding, waterskiing, garden-planting, or any other human activity. The section is vague ("protect," "assist," "restore") precisely so as to leave the door open to practically anything. In theory, your friendly Fish & Wildlife representative could even command you to start applying sunblock to your resident chipmunks' noses.

The draft of Mr. Rahall's bill was greeted by a glowing letter from 13 environmental outfits—EarthJustice, Environmental Defense, American Rivers, the usual crew—voicing their "strong support" for the legislation. As they might, since it appears they wrote it. A May 29 letter from Defenders of the Wildlife Executive Vice President Jamie Rappaport Clark—President Clinton's onetime wilderness guru—crowed that her group "worked with committee and congressional staff as they developed" the new global warming wildlife program. She also extols the big bucks that will flow to federal and state wildlife agencies as a result of that global warming initiative.
Now I'd love to pretend that she's wrong and that this would only apply to "US lands", i.e. lands managed by the Fish & Wildlife administration (and even if that were all that's true, it would still be bad law). But that hasn't at all the case with the endangered species act has it? We had tractors sued and farms confiscated because some sort of endangered beetle lived there and farming risked wiping it out. And then there's the wetlands legislation which, supposedly, only applied to government lands.

So while I'd prefer to say her statement, "Since green groups will argue that every species is vulnerable to climate change, the government will be obliged to manage every acre containing a bird, bee or flower" is hyperbole, I can't. Not after what we've seen in the past as concerns this sort of legislation.

Of course the other disturbing thing is that those who even reasonable people would say exist on the extreme of environmentalism are the ones who wrote the bill. If you read all of the article, Strassel lays out a case for this provision being "pay back" for the support of the environmental movement in '06. Democrats, when out of power, decried interest groups writing legislation saying it was an abrogation of responsibility and an example of special-interest legislation. Here they are, naturally, doing precisely the same thing.

There is an imminent and building threat to your private property. No, that's not the way to state it. There is an imminent and growing threat to all private property. And it is to be found in the Democratic party as it continues its steady march to the extreme left. This is just another in a long line of examples ("We're going to take things away from you ...") where they use the law as an excuse to place their priorities and the priorities of others over your individual rights.

Just as disturbing is the reason for this draconian attempt to control your property (and as it goes, he who controls property is the defacto owner no matter who holds title): Global Warming.

Yup, Global Warming, legislation written by special interests and vague wording will combine to require you to ask permission to do things on your own land and property. Who owns it then?


(HT: Tom Scott and Classical Values)
 
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McQ, I have worked as an Environmental Analyst for the past 17 years and I can tell you that environmental action groups all over the country have fought tooth and nail against the "private land" issues regarding the Endangered Species Act. They would like nothing better than to tell any landowner what he/she can do with the land - good, bad or indifferent.

This has directly affected even military training around the US. What used to be open territory around Camp Pendleton has turned into development right up to the main gate. Since there are/were no injunctions against private developers, they proceeded to build regardless of habitat that was being destroyed or damaged. The development of the area caused the local species to take flight and the only areas open to them was the land inside the gates of Camp Pendleton. Today, approximatley 80% of the land on Camp Pendleton has either been declared off limits for troop training or has extreme mitigation measures applied against any human activity - training or otherwise. Pendleton has even been considered for BRAC (Base Realignment & Closure) as a result.

Considerable defference is paid by US Fish & Wildlife Service (USFWS) to environmental groups such as EarthJustice, Environmental Defense Fund, American Rivers and other such groups. So much so that they act in may ways as an adjunct USFWS. And God help the poor federal bureaucrat who turns a deaf ear to their entreaties. They know just the right judges to get an injunction signed in a heartbeat! Most federal statutes apply directly only to
Federal lands - lands owned,leased or otherwise managed by the Federal Govermnment. But with this legislation even private and state lands could be thrown into the mix.

With this bill in mind (and not even knowing what else may be coming down the pike), I would make an even stronger statment than you - THERE IS AN IMMINENT AND GROWING THREAT TO ALL!
 
Written By: SShiell
URL: http://
Strassel needs to catch up. I was pointing out stuff like this months ago.

Why, oh why does thou ignore me, Strassel?!?

[ ... chirp ... chirp ... ]

[shoves hand in pockets; kicks pebble]
 
Written By: MichaelW
URL: http://asecondhandconjecture.com
Hmmmm....it’s looking like we have few choices. We can either wait for the Global Warming nutroots to take our land and give it to the squirrels (or is that the other way around?) or we can wait for the ReConquistatdors to overrun the southern half of the US and make it subject to Mexican authority again.

Or...I could just take my ball and go play someplace else and say "F*ck ’em. They deserve what they allow to happen to them."

Decisions, decisions....
 
Written By: Unscripted Thoughts
URL: http://
let’s get the law right here. The federal ESA contains a direct prohibition against the "take" of listed species by any person, where "take" is defined as kill, harm, harass, etc. (16 USC 1538.)

so when a guy runs his tractor over his land where there are kangaroo rats, and he has been repeatedly told that he has k.rats on his land and discing his land will violate the act, then the ESA applies against him criminally.

as best I can tell from the quoted section, the energy bill will apply only to lands owned by the US (ie, DOD, BLM, Forestry.) Federal agencies that own land containing endangered species are already obligated to carry out programs for the conservation of listed species. (16 USC 1536(a)(1).) It appears, therefore, that the bill is proposing some expansion of that obligation.

There is not one recorded instance of the US government using its 1536(a)(1) power / obligation against a private landowner, for the simple reason that Department of Justice lawyers really hate getting laughed out of court.

This is not to say that the legislation is a good idea. I haven’t had time to look at it. But the idea that the DOJ can magically rewrite obligations imposed only on federal agencies to apply to private parties is a non-starter.

 
Written By: Francis
URL: http://
Shoot, shovel, shut up.
 
Written By: SDN
URL: http://
as best I can tell from the quoted section, the energy bill will apply only to lands owned by the US (ie, DOD, BLM, Forestry.) Federal agencies that own land containing endangered species are already obligated to carry out programs for the conservation of listed species. (16 USC 1536(a)(1).) It appears, therefore, that the bill is proposing some expansion of that obligation.
And that was the way the federal wetlands provisions started out, not to mention the endangered species act. Since then, as mentioned, a number of, shall we say, "expansions" of reach have been forthcoming.

The point here is with the vague language in the bill, broad interpretations are just begging to be made. Because, you see, the ’species’ in question don’t just confine themselves to federal land and the point is to protect the "species".
 
Written By: McQ
URL: http://qando.net
Oh, and more on the latest excuse for a global power grab.

30 years ago they were screaming about the next Ice Age.

Assuming enough research is done and disseminated I guess they won’t be able to sell either Global Cooling or Global Warming (TM).

They’ll be selling something else as soon as Al Gore starts getting laughed off the stage.

The constant is they want power.

They should get lead.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
McQ, that’s just false. The US Army Corps regulated discharges by private entities to "waters of the US" well before the current version of the Clean Water Act was adopted. And since I’ve read and briefed the complete legislative history of the ESA, I know that the ESA was intended, from the beginning, to regulate the conduct of private entities.

If you have any evidence to the contrary, I’d be glad to see it.
 
Written By: Francis
URL: http://
Perhpas this will shed some light on the disagreement between Francis and McQ.
Michigan developer John Rapanos invoked the ire of federal regulators in the late 1980’s when he moved sand around on his property—a mostly dry piece of land 20 miles from the nearest navigable waterway—without a federal wetlands permit from the Army Corps of Engineers. The federal government maintained that his land is subject to federal wetland regulations under the CWA because of a supposed hydrological connection to distant waterways. Rapanos was convicted of criminal charges in 1998, paid hundreds of thousands in fines and served 200 hours of community service and three years of probation. The Justice Department also filed a civil action against Rapanos, seeking almost $15 million in fines and fees and 80 acres of his land.
 
Written By: tom scott
URL: http://
McQ, that’s just false.
Uh, no it’s not Francis, and without me even having to lift a finger, Tom Scott has provided you an example.
 
Written By: McQ
URL: http://qando.net
BTW, Francis, this would be an appropriate site to explore some of the abuses of the wetlands provisions of the Clean Water Act. Plenty of reading under the "cases" portion:
Congress adopted the Clean Water Act to protect the nation’s waterways and municipal water supplies from pollution. Over the years, however, bureaucrats in the U.S. Army Corps of Engineers and the Environmental Protection Agency have abused their authority under the law by adopting regulations and pursuing enforcement actions that subjugate farmers, builders, and other property owners to their unbridled discretion.

Landowners desiring reasonable improvements on their properties are often shocked to learn that doing anything to small depressions in the ground requires them to go through an expensive and onerous permitting processes. Federal regulators have even claimed the authority to grant or deny farmers’ requests to do deep soil plowing on their own property. In other cases, they have sought to impose criminal liability on innocent people without proving criminal intent! PLF is committed to actively pursue cases across the nation to put a halt to regulatory abuses under the Clean Water Act.
 
Written By: McQ
URL: http://qando.net
Let me say that IMHO the real culprit in all this is the stupid urban liberal who votes.
 
Written By: Robert Fulton
URL: http://
wow, we’re going to need finely tuned lasers to track the speed at which goalposts are moving.

Thank you for conceding that the ESA and CWA explicitly contain statutory authority for federal regulation of private parties.

Rapanos has nothing, NOTHING, to do with legislation by which various federal agencies work each other. The only question in Rapanos was whether regulations interpreting direct statutory language authorizing the Corps to regulate private parties were constitutional.

and while PLF has had some very nice wins, they’ve also lost a stack of cases. The ESA is constitutional, as is the Clean Water Act. The denominator against which regulatory takings are to be measured is the whole property, not just the portion of the property affected by govt regulation. (Palazollo.)

but returning to the original post, you’ve shown NO evidence that legislation which mandates intra-governmental consultations can magically morph into regulation of private entities.

here’s a basic common law principle — no person through the use of his own land may trespass or cause a nuisance on the land of another. there are two basic ways to achieve this principle — regulation and litigation. Do you really want to clutter federal courtrooms with lawsuits by fishermen against farmers? That’s what the CWA is about.

Pombo tried for years to get changes to the ESA through Congress. Many of his changes were imho actually good ideas (largely having to do with the timing and effect of designation of critical habitat). Yet despite a Republican President and a solidly Republican Congress he failed. Why? Because members of his own caucus heard from voters that they supported the law.

Damn those urbanites! How dare they pressure their elected officials to prevent changes in the law which would aggravate environmental destruction?

As the saying goes, everyone’s allowed their own opinion; they’re not allowed their own facts. There is plenty of room for reasonable disagreement on the policies embedded in the energy act. but at least get the law right.
 
Written By: Francis
URL: http://
wow, we’re going to need finely tuned lasers to track the speed at which goalposts are moving.
And now watch the goalposts move within one paragraph.
Rapanos has nothing, NOTHING, to do with legislation by which various federal agencies work each other. The only question in Rapanos was whether regulations interpreting direct statutory language authorizing the Corps to regulate private parties were constitutional.
So Rapanos has NOTHING to do with the legislation. Except for maybe, well...the constitutionality.
Francis, I appreciate your input. I can’t speak for McQ but for me it comes down to this. While the laws may be well-intentioned they are poorly written which allows government agencies to basically run amok over the populace.
Sure Pacific Legal Foundation has lost some court cases but look at the environment they work in. The Ninth Circuit for one. But PLF is not alone in the attempts to curtail egregious government actions. There is also Mountain States Legal Foundation.
here’s a basic common law principle — no person through the use of his own land may trespass or cause a nuisance on the land of another.
I’d like that to read: No person through the use of laws may trespass or cause nuisance on the land of another.
 
Written By: tom scott
URL: http://
And now watch the goalposts move within one paragraph.
The rule in leftie land is that the goalposts belong to them. You aren’t allowed to touch them but they can. Sort of how the government handles your land rights in these cases.
 
Written By: cap joe
URL: http://
Francis seems to ignore the fact that having to defend ones self against a lawsuit constitutes a taking.

You can be right. You can be vindicated in a court of law. You have still lost money and time from your life.

Shoot, shovel and shut up. Sage advice, indeed.
 
Written By: MarkD
URL: http://
I have written about the link between this problem and rent-seeking in general, at http://stonecity.blogspot.com/2007/06/sowing.html .
 
Written By: sammler
URL: http://stonecity.blogspot.com
but returning to the original post, you’ve shown NO evidence that legislation which mandates intra-governmental consultations can magically morph into regulation of private entities.
But we just did. The fact that you don’t care to admit it doesn’t change what’s right in front of your eyes.

As I said, whoever controls the property is the defacto owner regardless of who holds the title. And that is a direct threat to private ownership if ever there was one.

BTW, concerning Rapanos:
The central question is where federal authority ends along the network of rivers, streams, canals and ditches. Does it reach all the veins and arterioles of the nation’s waters, and all the wetlands that drain into them? Does it end with the waterways that are actually navigable and the wetlands abutting them? Or is it some place in between?

Also at issue are who draws those lines — and how — and who decides what the Clean Water Act means by "navigable waters" and "the waters of the United States."


Tucked into the larger question is the issue of how many of the nation’s 100 million or so acres of wetlands have a close enough connection, or nexus, to regulated waters to fit under the same regulatory umbrella.
Answer? No one knows.

Those decisions were being arbitrarily made by the Corps of Engineers without any legal authority that I know of. And that is where Rapanos does have bearing on the point under discussion.
 
Written By: McQ
URL: http://www.qando.net/blog
McQ:

There are environmental laws that regulate the conduct of private parties. Section 404 of the Clean Water Act prevents the discharge by private parties of dredge or fill material to waters of the US without a permit. Section 10 of the Endangered Species Act prevents any person from taking a listed species without a permit. The Clean Air Act (about which I know much less) regulates emissions to air.

And then there are environmental laws that regulate only the conduct of govermental agencies. BRAC laws, for example, impose obligations on the DOD for environmental cleanup. The ESA contains a special stand-alone provision (Section 7(a)(1)) which regulates the conduct of all federal governmental agencies that own land. The Forest Service is subject to a complicated land use management planning process. As is BLM. As is the Parks Service. The National Environmental Protection Act (NEPA) applies to a whole range of government actions but does not apply to private persons at all.

There may well be provisions of the Energy Bill that increase the burdens of private land ownership. But the quoted section does not, because it does not apply to private persons.

ya know, it’s not the end of the world to admit that you overstated your point. For all I know, the Energy bill language will cripple the ability of the Forest Service to allow timber harvesting, because in these cases the devil is in the details. And since planting trees and burning the wood allows for coal to be left in the ground, the provision may be grossly counterproductive.

but at the end of the day, the point remains that statutory regulation of federally owned land DOES NOT AUTHORIZE regulation of privately owned land.


p.s.: The Corps has a website. There are extensive links to discussions of their statutory and regulatory authority. If you believe that the Corps was acting arbitrarily and without legal authority, you might first want to do some research.
 
Written By: Francis
URL: http://
but at the end of the day, the point remains that statutory regulation of federally owned land DOES NOT AUTHORIZE regulation of privately owned land.
Quit avoiding the point, Francis:

"...whoever controls the property is the defacto owner regardless of who holds the title."

What the feds can exercise under the law is defacto control whether authorized or not, and that’s precisely what the Rapanos case illustrates.
 
Written By: McQ
URL: http://www.qando.net/blog
How very intellectual of you all. I live in what used to be a farming community, but which is now heavily forested. I recently saw a bald eagle. Nobody alive in this area has seen one around here up until recently. We have hawks and eagles galore and everybody appreciates them very much. Have some nesting on my land and I would do whatever it takes to protect them. They protect me from nuisances such as rats, field mice, and yeah kangaroo mice. So do my cats. If a bald eagle tried to build a nest on one of my neighbors land (not me of course) it would be shot post haste. You see, it is protected by law. I don’t know anybody that doesn’t want them around, but it would die anyway. We love environmentalists who live in concrete jungles telling us how to protect nature. We are overrun with wildlife. A couple of days ago I was going to the store and just as I reached the car a couple of baby raccoons came running up to me. Apparently a predator (cars included) got their mom. Kept them a couple of days until I found the number for fish and wildlife. They came out and murdered the little ones. You see, I live in a kill zone for raccoons. We were devastated. A trip to the store 15 miles away involves a body count, it makes me sick. Don’t get me wrong, I hunt and fish. I also have a great love for animals. Now this may sound arrogant but you people living in the cities have no idea what you are talking about, and for the Francises of the world a heartfelt effyou. In your quest for power, you have no feelings for the creatures you claim to want to protect.

I also don’t own my land, the government does. I pay my rent yearly. It is called property taxes. If you detect anger in this rant, you are correct. I hate the choices that are left to me by you power hungry socialists.

Paden Cash
 
Written By: Paden Cash
URL: http://

 
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