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Environmental Planning and the Clash Between The “Commons”

And Private Property - Who Decides? Who Pays?

Presented at the New Mexico Conference on the Environment April 26, 1994

I. Grass Roots Participation in the Planning Process: Who Decides?

Howard Hutchinson, Vice-Chairman, Catron County Land Planning Committee

It has become apparent that top down, one size fits all planning is a dismal failure. This paper will discuss the value of local grass roots participation in the planning process. Much of the planning now taking place dismisses the value of information available from local sources.

Conflict resolution demands that the interested parties empowered to render a decision be at the table. Without local ownership and authorship, putting the planning into action will continue to run into roadblocks.

This portion of the paper will discuss cultural values, collective memory, and public welfare and how these are integrated into the planning process.

II. The Legal and Moral Requirements for Environmental Planning: Who Pays?

Jim Catron, County Attorney, Catron, Sierra and Torrance Counties

This portion will center on the legal issues surrounding the costs of environmental protection. The laws, regulations and moral principles that guide the planning process will be presented. The NEPA grants state, local and tribal governments a unique position in federal environmental planning.

There is an unresolved conflict between the “commons” concept and private property rights. Environmental planning has to recognize the benefits of private property ownership.

Regulations and actions that adversely impact property ownership have takings implications. If left unresolved in the planning process the issues will have to be resolved in court. The moral question, who pays for environmental protection, must be factored into the planning process.

III. Assessment and Mitigation Of Environmental Impacts: How Much and When?

Alex Thal, Ph.D., S.W. Center for Resource Analysis, WNMU

To arrive at sound environmental planning decisions, assessment of the impacts on the “Human Environment” is essential. This includes the physical, social, and economic environments.

Mitigation is the process of avoidance, compensation for, or mediation of adverse impacts that result from a proposed action. There is an obligation to assess and mitigate the negative impacts on civil rights and economic interests of affected communities and individuals.

This portion of the paper outlines how to assess the impacts on the cultural fabric and community stability. The importance of individual and collective ownership and authorship of the final decision is also discussed. When the full range of impacts and mitigations are examined, the physical, social and economic environment benefits.

I. GRASS ROOTS PARTICIPATION IN THE PLANNING PROCESS:

WHO DECIDES?

For seventy years, the Soviet Union initiated one five year plan after another. When the Iron Curtain was lifted, the world gasped at the destroyed environment and a broken people. One by one, the Eastern European nations dropped their attempts at centralized control in favor of free markets.

Centralized control destroys incentives through several mechanisms, chief being the lack of predictability. It is the criterion most people rely on when undertaking any kind of action for their well being. Under centralized control, each planning error is replaced by a new plan. In such an environment, predictability and therefore, individual initiative disappear.

In May of 1993. Russian free market reformer William Milonoff stated in Carlsbad, “In the Soviet Union we were all equal, nobody had enough food, housing or clothing.” “With the rest of the world turning away from socialist planning, why is America going the other way?”

The opposite of centralized planning is individual choice and grass roots planning. Reducing the size of the geographic and population planning areas increases predictability by reducing variables. The physical environment determines the customs and culture of the people living in a given area.1 Obviously grass roots participation is needed in the planning process.

The process now evolving to meet this need is termed ecosystem planning. This planning recognizes the symbiotic relationship of humans with the physical and biological environments. This concept has been a part of the collective memory since humans appeared on the planet. It has been only recently that the luxury of free time, afforded by technology, has elevated that memory to conscious applications in the planning process; in Native cultures this understanding is an integral part of everyday life.

CONFLICT RESOLUTION

Inherent in changes are conflicts. The strategy adopted to address environmental concerns has been centralized control. This centralized, one size fits all, approach has run head on with local cultural values and economic systems. Integrating grass root input into planning, thereby decentralizing the command and control approach, is the challenge.

Successful conflict resolution requires that the interested parties be at the table. Distant policy and decision makers dictating actions that adversely impact local environments will meet resistance.

There is a wealth of information in the collective memory of local inhabitants. Local customs are forged by years and often centuries of trial and error. What is termed “provincial” attitudes by outsiders is the survival mechanism of localized cultures. When local, state and federal governments make management decisions, the collective memory and local customs need to be incorporated and protected.

Each change of administration in Washington or state capital brings new management strategies and thence, conflicts. This destroys predictability and frees the displaced managers from accountability for any mistakes in judgment they may have produced during their tenure in office. This, in itself, bolsters the argument for localized environmental planning.

OWNERSHIP and AUTHORSHIP

Local ownership and authorship of environmental planning places the local interested parties at the decision making table and reduces the potential for conflict. Instead of reacting to imposed decisions, there is proactive integration of new knowledge into the culture and customs. This is the natural method of encountering problems and finding solutions.

Proposals for actions come from perceived problems or needs. If the problems or needs are perceptions originating from outside the planning area, they will not be readily accepted. How problems and needs are defined and the process used to arrive at decisions will define how implementation of those decided actions will be accepted at the local level.

When public hearings are conducted on proposed actions that affect local cultures and economics, they should be conducted in the affected locale. Quite often rural interested parties are required to travel more than 250 miles to present their issues and concerns. This effectively eliminates local ownership and authorship.

While distant public hearings may meet the letter of the law, the following observation and suggestion merit repeating; “At times it has seemed that the attempt to include public opinion is little more than public relations; the real objective is the public perception of public involvement.”2 “Instead, an effective public participation effort should aggressive (sic) pull people into the process.”3

Decisions made in absence of local participation, and therefore, no local ownership and authorship, guarantee conflict and strong resistance to implementation.

DEFINING PUBLIC WELFARE

Public welfare can be discussed in broad applications such as the general welfare clause of the U.S. Constitution. It is under this application that the local, state and federal government derive what is called police powers to protect the health, welfare and safety of the citizens. Each jurisdiction’s powers are enumerated in their enabling documents.

There are certain things such as air and water quality that are easily defined as being common interests. The oceans, broadcasting air waves, public facilities, etc. have uses and ownerships derived from common, statutory and international law.

Adding to the complexity of the planning task is the inclusion of unquantified amenities protection. Assigning a value to visual qualities, wildness, solitude and accessibility has not yet been successfully accomplished.

When public welfare, in environmental terms, is defined internationally, nationally or statewide, individual cultures are placed at risk. Broad applications of a given policy can have the undesired effect of creating a mono-culture. Mono-culture has a natural vulnerability to being wiped out enmasse from a single affront. Natural law demands diversity for healthy ecosystems as well as human organizational systems. This is the probable origin of the common sense cliche, “Wouldn’t it be boring if everyone were the same?”

Defining the boundaries of planning areas must take into account the differing values held by local cultures. There is a need to balance the protection of the commons while ensuring the persistence of diverse cultures. Knowledge, individual choice and responsibility are the keys to environmental protection, not government confiscatory regulation of private property. Governments and the environmental movement must come to trust that a free people can protect the environment.

II. THE LEGAL AND MORAL REQUIREMENTS FOR ENVIRONMENTAL PLANNING:

WHO PAYS?

The increase in public awareness and concern over human impacts on the environment has clouded the once distinct lines separating public welfare and private property. There now has been reasserted the concept of the commons,4,5 which in its current use is better described by the word communia.6

There are property rights held by all in the commons and private property rights held by individuals. Conflicts are created when property rights are violated.

The public welfare is preserved when property lines are well defined and respected; the same holds true for the boundaries commons.

Of all the rights held as citizens, the right to own property is central to the current controversy. Life without liberty is not worth living and liberty empty without the power to acquire and control property. So high a priority was given to the ownership and exercise of control over property that the Founders of this nation included the Fifth Amendment in the Bill of Rights.

The Fifth Amendment to the United States Constitution provides that “no person shall...be deprived of...property, without due process of law, nor shall any State deprive any person of...property, without due process of law...” Any question of who pays for environmental protection must be examined in the light of these limitations on governmental powers.

The concept of property is now in rapid flux. The courts have extended the concept of property to include privacy and intellectual creativity. The U.S. Supreme Court has held that government’s police powers do not include the taking of private property, through the regulatory process, without just compensation and due process.7 Environmental planning must now include property takings implication assessments.

In essence, these Constitutional mandates recognize that the expense of projects undertaken for the public good (the public welfare) must be paid from public funds. The Founders acknowledged here that tort law, grounded as it is in private property rights, must extend to private injury by public agents. Anything less amounts to expropriation, long recognized as the hallmark of tyranny.

Environmental protection is ordered by our public laws for our public welfare, our public good, and therefore, is required to be a public expense. Our government has assumed to itself the prime role in our society’s efforts to move toward sound ecosystem management. But government is not the only path to the goal, and all its efforts must conform to Constitutionally and legislatively mandated procedures.

It is clear that our society regards procedure over substance. We, through our democratically elected officials, make it our public policy that criminals go free before we allow violation of their Constitutionally-protected due process rights. We often see corrupt or incompetent public employees re-instated because their firings were done without adequate due process protection of their property rights in continued employment. The Constitution is itself a procedural document, protecting life, liberty and property through due process requirements.

In addition to those procedural requirements of the Constitution, Federal agents must obey the procedural mandates of the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) regulations, and Presidential Executive Order 126308 .

Production in this nation comes not from centralized economic planning, but from free enterprise. Free enterprise is the right to conduct a legitimate business for profit. In short, people produce goods or services for profit, by applying labor to property. Such is the fundamental hallmark of liberty.

The NEPA is replete with references to the productive harmony between man and his environment, to fulfilling the economic requirements of present and future Americans, to beneficial use and to individual choice. Implicit in such references is free enterprise, and therefore, property.

The NEPA is a procedural statute; it instructs all Federal agents, not what they shall do to protect the environment, but how they shall do it. Section 102(c) requires agents to prepare environmental impact statements (EIS) on proposals for legislation and other major Federal actions significantly affecting the human environment. The CEQ regulations specify that such effects include economic effects.9

Executive Order 12630 explicitly recognizes that “governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required.” It commands Federal agents to “review their actions carefully to prevent unnecessary takings...” by completing Takings Implications Assessments (TIA).

The same considerations are present in the CEQ Regulations for mitigating adverse effects of federal actions. The NEPA and the CEQ Regulations recommend mitigation of adverse effects on the physical, biological, social and economic environments and therefore, private property rights; the Constitution requires it.

Whether discussed in terms of TIAs, EISs, alternatives, mitigation, or inverse condemnation lawsuits, the issue is who should pay for environmental protection, the public treasury or the private property owner? The ringing answer of our society is that public benefits are public expenses. Our laws and our mores dictate against allowing public agents to seize private property, no matter how noble the cause.

III. ASSESSMENT AND MITIGATION OF ENVIRONMENTAL IMPACTS:

HOW MUCH AND WHEN?

LOCAL AUTHORITY

The people have granted local governments “police powers” to develop land use, resource management, and environmental planning policies and ordinances to “protect the health, safety and welfare of its citizens”. Local governments can establish environmental policy (mini NEPA) to protect the resources for future generations as well as to protect the economic and community (customs and cultures) stability.

When local, state and federal governments’ subject matter or territorial jurisdictions over the commons overlap, it is paramount that local governments be involved in environmental planning. In the process of planning and decision making, federal agencies are required to consult early with state and local governments.10 Moreover, NEPA provides opportunities for joint environmental planning.11

The purpose of the local government environmental planning and review process is to provide a problem solving process to eliminate or significantly reduce negative effects on the “human environment” from federal (and state) actions. The objectives are to:

• Disclose to decision makers and the public the significant environmental effects of proposed federal and state agency actions on physical, social, cultures, customs, property rights and the economic stability of the local planning area.

• Identify ways to avoid or significantly reduce damage to the human environment.

• Prevent damage to the environment by requiring implementation of feasible alternatives and mitigation measures.

• Promote intergovernmental coordination and enhance public education and participation.

• Enhance local government capabilities to plan and manage resources and protect the health, safety and welfare of citizens.

• Foster community involvement in self-government.

ENVIRONMENTAL PLANNING REQUIREMENTS

Federal agencies are required to assess direct and indirect effects and their significance and cumulative effects12 . To this end the following elements should be included in environmental assessments with local government involvement and coordination:

• Determine objectives and desired conditions of the local planning area.

• Assess physical, social & cultures, and economic impacts.

• Assess impacts on private property rights (Takings).

• Comparatively evaluate alternatives and identify mitigation measures.

• Public involvement requirements.

• Implement and monitor decisions & mitigation plans.

The objectives for local, state and federal agencies should be to develop a coordinated approach to integrating environmental and resource management to:

• Understand the customs and cultures of the local planning area, related to resource management, land use and environmental values and beliefs, such as self-regulation and stewardship.

• Identify output requirements for improving resource conditions and trends, and for protecting the community and economic stability and sustainability of the local planning area.

• Develop resource descriptions for desired conditions, including standards and monitoring methods.

• Coordinate in the development of approaches for preferred management alternatives that support the human environment of the local planning area.

An environmental impact assessment should also be concerned with who pays and who benefits with particular attention to impacts on property rights and protectable interests in the local planning area. An environmental assessment should use the following criteria in assessing possible taking of private property rights: physical invasion (actual intrusion or land withdrawal); loss of economic value and investment backed expectations; effects on customary uses and cultural values related to natural resources; and basic rules of fairness and due process procedures. Civil rights impacts should also be weighed. Compensation should be afforded when impacts adversely affect one or more of the above by providing substitute resources or economic opportunities of equal monetary value.

The environmental assessment document must discuss a range of alternatives to federal or state proposed action or decision that could feasibly attain the basic project proposal objectives, and it must evaluate alternative comparative merits of the alternatives. Significant environmental affects of the alternatives must be identified, along with the mitigation measures13 .

MITIGATION PLANNING

The purpose of mitigation planning is to resolve the conflicts between alternative uses of available resources and reduce the severity of the impacts on the human environment14 . Mitigation is one of the alternatives that must be considered in identifying the scope of the environmental analysis process and document. Local, state, and federal agencies should not approve projects as proposed if there are feasible alternatives or mitigation measures available which would eliminate or significantly reduce negative impacts on local physical, social, cultural, property rights, and the economy.

For every significant impact identified in an environmental assessment report, agencies should:

• Discuss mitigation measures to include significant side effects of implementing a mitigation measure.15

• Identify the rate, magnitude and extent of each impact,

• Identify who is responsible for the mitigation.

• Specify mitigation measures that avoid impacts altogether by not taking certain actions.

• Minimize impacts by limiting the magnitude of the action.

• Rectify the impacts by repairing, rehabilitating, or restoring the affected environment.

• Reduce or eliminate the impacts over time by providing preservation and maintenance processes during the life of the action.

• Compensate for the impacts, providing substitute resources of equal value.16

PUBLIC INVOLVEMENT REQUIREMENTS

Federal and state agencies should coordinate joint public involvement planning, programs, and processes with local governments17 to:

• Identify the major issues, affected parties (financial interests and/or risks) and opportunities of the proposed action.

• Appraise property owners of regulations and decisions that may affect their property rights.

• Provide public opportunities to evaluate alternative plans and to participate in choosing the preferred alternative.

• Create an atmosphere in which conflicting demands for resources and uses can be resolved without destabilizing the community economic, social, and/or cultural fabric.

IMPLEMENTING AND MONITORING THE ENVIRONMENTAL DECISION

Mitigation monitoring must be a condition of approving the proposed action when a finding of significant effect is identified in the assessment document. Monitoring should be provided to assure that agency decisions are carried out in compliance with the mitigation plan during plan implementation18 . It must include appropriate conditions in grants, permits or other approvals and condition project funding on mitigation. The decision must be totally funded, including mitigation, or not funded at all. The environmental assessment document must also specifically explain how the conditions would mitigate the impact and the effectiveness of the measure, as applied and enforced.19

The intent of a mini NEPA policy is to provide local governments with the strategies, methods, techniques and requirements for mitigation planning, implementation and monitoring. With these strategic tools, local governments significantly increase the likelihood and opportunities to eliminate adverse impacts on the local physical and biological environments, economic stability, customs and cultures and property rights.

CONCLUSION

Before the Age of Enlightenment, all power and all property belonged to the absolute monarch and the aristocracy. History was a constant struggle for power and property between armed elites. Peace is dependent upon government by popular consensus and private property rights.

The consequences of failure to include the issues of this paper in environmental planning are ultimately social costs. Administrative costs include transaction costs and government fiscal stress. There are political, litigation, and environmental costs incurred by such failures. More important is the threat to basic liberty and individual fairness that further erodes the citizens’ trust in government to protect individual liberty, private property rights and the commons.

Environmental protection raises no new issues for the student of government. The questions addressed in this paper, who pays and who decides were the issues of the Enlightenment.

Classical Liberal political philosophy rejects arbitrary power vested in elites. Self-government, government by popular consensus is the system blueprinted in the Constitution. Efforts to use the cause of environmental protection to increase the arbitrary power of government will backfire. If protection of nature becomes identified with arbitrary assumption by agencies of dictatorial powers, the grass roots will resist and rebel, to the detriment of both self government and the environment.

1 Sky Determines, Calvin, 1934, The MacMillan Company; 1948,1965 University of New Mexico Press; 1993, paperback edition reprinted by arrangement with UNM Press, High Lonesome Books

2 IT TAKES NON-EXPERTS TO COME UP WITH THE RIGHT ANSWERS, Jeff Radford, 1992 N.M. Conference on the Environment Papers, Pg.440.

3 Ibid, Pg.443

4 Common: Belonging to or being shared by two or more individuals or by all members of a group, Webster's Seventh New Collegiate Dictionary, 1963

5 Commons: Part of the demesne land of a manor (or land the property of which was in the lord), which, being uncultivated, was termed the “lords waste,” and served for public roads and for common pasture to the lord and his tenants, Black’s Law Dictionary, Sixth Edition, 1990

6 Ibid.,Communia: In old English law, common things, res communes. Such as running water, the air, the sea, and the seashores

7 Nolan v. California Coastal Commission and First Evangelical v. Los Angeles County, 1988; and Lucas v South Carolina Coastal Commission 1992

8 Federal Register, Vol. 53, No. 53, March 15,1988

9 40 CFR § 1508.8(b)

10 40 CFR § 1501.2 (d) (2)

11 40 CFR § 1506.2

12 40 CFR § 1502.16(a), (b), (c), (h), §1508.8; Federal Register Vol. 57, No. 182 (9/18/92), § 11,31(b)

13 40 CFR §1502.14

14 42 USC §102 (2) (e)

15 40 CFR §1502.14(a), (b), (c)

16 40 CFR §1508.20

17 40 CFR §1506.2 (b) (3)

18 40 CFR §1505.3

19 The Steamboaters v. Federal Energy Regulatory Commission, 759 F.2d 1382 (9th circ. 1985)