Thoughts on Prop 90

I was very excited to about the "Protect Our Homes" initiative, until I read it. It starts out well enough, tightening the meaning of "public use," employing rules against developer land grabs. It even would require restitutionary compensation, as I promoted in my recent comment in Chapman Law Review. "[T]he property shall be valued at the use to which the government intends to put the property."

But Prop 90 appears to restrict environmental regulation too heavily. Although I am sympathetic to the cause of making land use decisions more libertarian/market-based, I tend to think that environmental regulation is probably the most justified sort of regulation. I've always been intrigued by the concept of making the government pay for every regulation--after all, regulation is basically just a shift in values, and so theoretically we should just identify who derives the value of regulation, and disgorge some of that value to repay the regulatee. But I don't see prop 90 as making a serious effort to make that system work in reality. Californians will continue to demand environmental protections. But I tend to agree with its opponents that Prop 90 could wind up a "tax trap," as large developers would not bear any of the risk that their uses are adverse to the environment: if the public regulates the owner's environmentally harmful use, the public foots the bill for the abatement. Thus these owners are likely to capture the compensation required of environmental regulations.

Of course, this won't trouble free market environmentalists, or environmental skeptics in general. But something else should worry you as well: as soon as an activist Ninth Circuit judge (I've heard there are a few of those) gets a hold of Prop 90, it'll likely be the end of it. And this may create a big backlash.

Lots more on Prop 90 at the Eminent Domain Symposium on Oct. 20.