Overbearing EPA ecocrats got a well-deserved smackdown yesterday by a unanimous Supreme Court. Bravo! And Bravo again! The court’s infamous Kelo ruling still stings for those of us who understand property rights as the most fundamental rights of all, without which we Americans enjoy no zone of personal autonomy, free from government meddling and encroachment. But this welcome ruling represents a step toward redemption.
It’s a significant, but not decisive, victory for property rights in America. It’s important to keep in mind that what the EPA is being faulted for in this case is procedural malpractice: the agency arrogantly boxed-in the victims with enough Catch-22s, and so little due process, that even the High Court’s liberals were forced to side against the state. I’m not sure this ruling will prompt a general rollback or reining-in of the agency’s regulatory excesses; it’s more likely to be seen, inside the agency especially, as a mandate to modestly alter procedures, and inject just enough due process, to pass constitutional muster. I wouldn’t assume it will be seen by greens and green-leaning ecocrats as a repudiation of a mission that has become much too intrusive, expansive and, in this and other cases, abusive.
What we Americans really need is a court ruling that definitively recognizes the concept of a “regulatory taking,” requiring that fair compensation be paid to a landowner when government actions negatively impact the use or value of their property. This would revolutionize the way governments regulate, by forcing regulators to concede that their willy-nilly rulemaking carries costs, which now are almost all shouldered by the regulated rather than the regulators. Having to pay cold hard cash for those costs, up-front, would make politicians far less likely to impose regulations that can’t be justified through a solid cost-benefit analysis.
The ruling undoubtedly is something to cheer for property rights advocates. It’s always great fun seeing a bully get punched in the nose. But I fear that we’re wishful thinking of we conclude that this represents a sea-changing setback for EPA and other bullying federal bureaucracies. It’s going to take more than one punch in the nose to deter a bully this big and bold.