Friday, July 07, 2006

The Tennessean's Attack on Property Rights

The Tennessean, who's editorial page has lately shown an affinity for attacks on individual rights (see here for a rundown), today seeks to undermine both property rights and federalism.

In criticizing the U.S. Supreme Court decision in Rapanos v. U.S. (The Oracle wishes that The Tennessean would name the case it is criticizing. Since the opinion was issued almost three weeks ago, it took a bit of time to locate the right case.), the editorial calls upon Congress to "revisit the Clean Water Act and specify that the law protects wetlands." What they don't really tell the reader is what the Court decision says is outside the current version of the Act. The term "wetlands" is vague enough to be misleading, and many people likely have visions of vast swampland or flowing creeks. In fact, a "wetland," as frequently interpreted by the U.S. Army Corps of Engineers, may be a dry riverbed or piece of land that occasionally has standing water after a period of heavy rain. As the plurality opinion by Justice Scalia states, the Corps has even argued that an area that would have standing water after a "100 year flood" would be classified as a wetland. Under that standard, most people's front yards would fall under federal regulation.

In the Rapanos case, the nearest navigable body of water was at least 11 miles away from the property in question, from which there was no continuous flow of water to the navigable body (navigable water is defined broadly under federal law, and includes any "relatively permanent standing or continuously flowing body of water." In short, it is navigable if a child's rubber ducky could float in it for much of a year. The land that Rapanos sought to develop occasionally flooded after a hard rain, with the surplus water flowing into a man made drainage ditch.

But The Tennessean considers the federal government's reach to be so broad that it should regulate such property. It should be noted that the ruling does not inhibit the right of a state to place land use restrictions on property. The Tennessean finds individual rights measured by state regulation to be insufficient. It is up to the federal government to move in and make sure that occasional standing water in someone's front yard isn't filled in so as to endanger the environment.

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