Forcing The Public To Pay

When we go beyond protecting the environment, however, that is when we leave the domain of the police power and enter the domain of eminent domain. Here, government at all levels, has to be very careful to preserve the principle. Environmental protection, strictly speaking, has to do with protecting both private and public rights, not private or public goods. There are many things in the world that many of us think well, and many disagreements about what is and is not good. Only some of those things are held, free and clear, by right. I may enjoy and think good the view that runs over your property, but if I want to make that view mine, by right, I'd better buy an easement from you that stops you from building or otherwise blocking that view, but only if you are willing to sell me one.

When the public wants that view, however, all too often it simply takes it, by passing a law prohibiting you from doing anything on your property that would block 'its' view. Never mind that the view does not belong to the public. Never mind that the property and the right to use it belong to you. All that matters to the legislator is that he can provide the voting public with a free good, at your expense. This in a thumbnail sketch, is how modern regulatory taking arises.

Once allowed to arise, there is no end to the matter. For when the state pursues public ends on the cheap, when it drives the costs of those goods 'off budget,' making them fall on individual property owners, fiscal discipline goes out the window. As economics 101 teaches, when the cost of something is zero, the demand is infinite. It is no accident, therefore, that regulations to provide the public with such 'free goods' have grown and grown: they are costing the public nothing. Indeed, because the costs are off budget, we have no idea whatever, as a public matter, whether a given view or historic site or subspecies is worth saving. If it's 'free,' save it!
None of this is to argue, of course, against saving views or historic sites or subspecies or whatever. Rather, it is to say simply that if the public wants those things, it should pay for them, like any ordinary person would have to do. In fact, the entire property rights movement today can be reduced to a simple phrase: 'Stop stealing our property. Pay for it.'