Indirect Regulatory Takings of Private Property
via the Precautionary Principle
Laurence Kogan
As I have been discussing with you, Europe's "I fear therefore I shall ban" Precautionary Principle (it rejects scientific and economic justification [legal benchmarks] before environment and health laws and regulations based on it are enacted), which is deeply embraced by the global environmental activist community, including that embedded within the US, is being imported systematically in pieces into US state and local legislatures and federal administrative practice. Where it is not expressly 'on the books' it is being 'read into' existing rules which do not contain it by career bureaucrats within administrative agencies (NY, NJ, MA, CT, ME, DE, MD, VT, NH, CA, WA, OR, CO, etc.) and by liberal judges (don't forget the recent divided ruling of the US Supreme Court in the case of Massachusetts v EPA, in which liberal Justice Stevens determined that carbon dioxide was an 'air pollutant' within the meaning of the federal Clean Air Act, thereby requiring the EPA to consider whether it should be regulated. It is somewhat maddening to detect the Precautionary Principle at work because you don't often see it until it is too late. You only know after it has struck you.
Nevertheless, one thing is certain, namely, that with the use of the Precautionary Principle, legislators, regulators and environmentalists have a powerful new tool that they can use to continue to whittle away at private property rights through the 'indirect regulatory takings' mechanism. Former President Ronald Reagan and his trusted Attorney General, Edwin Meese, were quite familiar in their time with how bureaucrats, political liberals and environmentalists were then endeavoring to indirectly 'take' private property through regulation. Now, with Europe's philosophy of the Precautionary Principle spreading in international law and being actively promoted within the US, the liberal and environmental establishments now have Europe's assistance to further diminish Americans' private property rights. Consequently, unless Americans work together to 'smoke out' the use of the Precautionary Principle at the federal, state and local levels, the rate of indirect regulatory private property takings will not only continue, but also increase.
Two years ago I documented how Europe was enlisting American politicians, bureaucrats and environmentalists to export the Precautionary Principle to the US, and how it would negatively impact American free enterprise, were their efforts successful. This evidence assumed the form of a book published by the Washington Legal Foundation (the 'green book' which some of you have - http://wwwagbios.com/docroot/articles/05-313-001.pdf ) and also it was published as an online manuscript by the International Journal of Economic Development edited by professors within the School of Public Administration at Penn State University (the brief abstract/summary of which is accessible http://www.spaef.com/IJED_PUB/v7n2-3.html // the full document is accessible here: http://www.itssd.org/White%20Papers/ijed-7-2-3-kogan.pdf ; AND AN EXECUTIVE SUMMARY OF IT IS ACCESSIBLE HERE: http://www.itssd.org/White%20Papers/PrecautionaryPreference-EURegProtectionism-EXECSUMM.pdf).
Since the abstract is short and sweet it might be useful to share it with your readers 'to bring them up to speed'. The executive summary at 23 pages would give them more information without being overwhelming.
People are likely to be more interested and effective if they know what is going on and feel comfortable speaking about it.
Our collective goal should be to make indirect regulatory takings a campaign '08 issue that all presidential candidates must address.
Thank you for your thoughts and consideration.
Lawrence Kogan
Institute for Trade, Standards and Sustainable Development (ITSSD)
Princeton, NJ
Good Neighbor Committee
P.O. Box 155 - La Salle, CO 80645
info@goodneighborlaw.com
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