PIELC 2005 Living As If Nature Mattered
Measure 37 now requires that government pay developers for the impact of environmental and land use regulations since they acquired their property or waive the regulations. Land owners have filed hundreds of claims for compensation or waivers.
But how do you calculate how much to pay? That economic question was the topic of a panel discussion March 4 at the Public Interest Environmental Law Conference.
OSU economist Andrew Plantinga said potential payments could vary from very large to zero depending on how they are calculated. Measure supporters have argued that a Realtor's statement of how much their property would be worth without the regulation preventing development is enough. But Plantinga says such an estimate assumes that development could occur only on that property while not on the many other properties also subject to Measure 37.
If many other properties could also develop, individual properties would be worth far less under the law of supply and demand, according to Plantinga. "The market is flooded with such parcels," he says. The highest value use for the property could be as farmland as already allowed and the Measure 37 claim would be worth zero dollars, Plantinga says.
With so much uncertainty and complexity in estimating claims, there's a prospect of dueling estimates, Plantinga says. "Maybe this is a full employment act for economists."
Plantinga says "the most reasonable approach" to calculating the value of Measure 37 claims could be to simply go back to the original purchase price of the property. That market price reflected the assumption by the buyer that he could improve the land in the future, according to Plantinga. Adjust that historic price for inflation and compare it to today's market price for the land with regulations and you have a good estimate of the impact of regulations on the land value, he said.
Plantinga's formula could result in radically reduced Measure 37 claims. For example, a house bought for $100,000 in 1980 would cost about $233,000 today, based on federal data on average increases in Oregon housing prices. Adjusting $100,000 in 1980 dollars for inflation to 2004 produces a figure of $229,000. So, under Plantinga's formula, the house would be worth $229,000 today without the regulations versus $233,000 with them. A difference or claim value of negative $4,000.
Ed Sullivan, a land use attorney who works for cities, says claims should also be adjusted downward to account for the years of tax breaks given to farm and forest land owners intended as compensation for keeping their land in farm and forest use. "We've subsidized these to the tune of many hundreds of millions of dollars."
But all this economic analysis could be moot if governments simply waive regulations rather than paying claims.
Jim Just of the pro-planning Goal One Coalition says such regulatory waivers were the original goal of the big timber corporations that bankrolled Measure 37's passage with a "deceptive smokescreen" of a campaign emphasizing fairness for families owning small properties. "Measure 37 isn't about compensation," he says.
Many conservative counties don't like the state's land use regulations anyway and appear ready to quickly waive regulations for Measure 37 claimants, according to Sullivan. A recent state attorney general opinion made such waivers even more likely by stating that counties and not the state were liable for the entire cost of any Measure 37 payments, Sullivan says.
However the AG opinion also cast doubt on many claims by saying that Measure 37 waivers were not transferable to new owners. If the waivers aren't transferable, developers and bankers may not use them to cash in on large-scale projects.
With so much uncertainty, "I don't think this [measure] is going to translate into a lot of changes on the landscape, at least initially," Plantinga says.
The state Legislature could clarify the law, but appears deadlocked so far.
"The fellows that passed this measure have what I call the 'dilemma of answered prayers' and they need a legislative fix far more than anyone else to save their bacon," Sullivan says. He expects two years of tough fights in the Legislature and courts before there's much clarity on Measure 37. "The lawyer business is going to be pretty good over this. It may not be so good for Oregon taxpayers."
Just says Measure 37 supporters aren't looking for a reasonable compromise in the Legislature. "They're looking to destroy the ability of government to govern," he says. The measure sacrificed the state's future under the ideology of, "I can do whatever I want regardless of the impact on the community."
Let 'Em Go
A common criticism of conferences like PIELC is that speakers and presenters preach to the choir, reinforcing notions that environmentalists already share. Green-minded conference attendees might have been shocked, then, to hear Portland animal law attorney Geordie Duckler's perspective at a panel called "A Prehistorical Perspective on Preserving Animal Species."
Duckler's point, in a nutshell, is this: Wilderness is disappearing, and with it the concept of wild animals. It is in the best interests of humans to decide which species we want for food, tools and entertainment and breed them captively in zoos and on farms. Millions of other species will die out, but that only helps us, allowing humans to control more resources.
Duckler, who holds a Ph.D. in biology from UCLA, couched his argument in natural history. He explained that most large mammals in North America went extinct for unknown reasons during the Pleistocene Era, probably to the benefit of the continent's first humans. Another "demographic winter" — a period of mass extinction — is now upon us, he explained, and people's attempts to protect wild endangered species are ultimately futile.
"Captive breeding is the solution right now," Duckler said. "Life in captivity is probably many magnitudes better than life in the wild for most species. Animals in artificial environments continue to evolve." They evolve toward domesticity, becoming tamer, more sedentary and less sexual — which suits humans quite well, according to Duckler. Zoo animals are marketable if they're clean, good-looking and well-behaved. "Zoos are movie theaters," Duckler said. "They are crucibles of entertainment."
The attorney's message addled a few audience members. One somber-looking young man with a sleek ponytail spoke up. "Let me get your argument straight," he said to Duckler, his voice calm but loaded. "You're saying that we should captively breed the animals we think we need and forget the rest?"
"Is there something intrinsically valuable about diversity?" Duckler shot back. "The engine of evolution is driving more human population growth. As long as humans continue to do what they do, they'll take up the living space of other things."
The environment, he said, is indifferent; it doesn't function any better with more biological diversity than with less. "I don't want to put value judgments on whether removing a species from the wild makes the wild worse off," he said. "For every animal that is killed by a human, some other animal will derive some sort of benefit."
In Duckler's view, there is nothing "unnatural" about human enterprise. Whether people are making Barbie dolls or drilling for oil, our activities are a part of a natural drive to compete with other species. "If we can't exploit it and utilize it as a resource, it seems to be in the way," Duckler says. It's us versus them, and we're winning.
The other panelist was Christine Garcia, an attorney with The Animal Law Office in San Francisco. Garcia didn't have much of an opportunity to speak during the panel, but she later shared her opinion with EW. "I think that Geordie Duckler has a very homeocentric perspective," she said. "I hope he was just there for the shock factor."
Garcia said that humans endanger their own welfare by destroying the wild habitats of other species. For example, she said, when people clearcut forests for grazing, we encourage the production of noxious gases that impede our survival.
"To decide that the animals we don't use for food or tools, we don't need, is a grave breach of our social contract with the world," she said. "I think our homeocentrism is a genetic defect that our species has. The problem with human narcissism is that it can lead to humans becoming extinct ourselves."
Bridging the Gap
Lawyers can be revolutionaries too.
Lawyers are up against public mistrust before they even open their briefcases. The common stereotype is that lawyers are rich, greedy and elitist; that whatever ideals they held before law school are eventually squelched by the pursuit of money and power. During the PIELC panel "Bridging the Gap Between Environmental and Social Justice Legal Work," three activist lawyers discussed the challenge of staying true to the progressive movement.
Brenna Bell, an attorney with the National Lawyers Guild, seemed a contradiction at first sight: She sat at the front of the room with a shaved head, talking about revolution while nursing her baby. Bell, who sat in trees to protest timber harvests before earning her J.D., described a "structural disconnect" between street activists and attorneys: lawyers abide by the system, while activists try to subvert it. "I think that many lawyers are asses and need to get off their pedestals," she said. "It's becoming increasingly important to incorporate environmental lawyers into the grassroots movement."
Instead of lording over laypeople, lawyers can help activists to access the law and use it to their benefit. Local progressive lawyer Lauren Regan, who founded the Civil Liberties Defense Center (CLDC) in Eugene, leads Know-Your-Rights trainings for people involved in civil disobedience protests. She currently represents activists arrested for protesting logging in the Biscuit Wilderness.
Regan said that the progressive movement depends on both direct activists and lawyers, especially in these conservative times. "It is going to take a broad-based grassroots coalition to put our fingers in all of the holes that this [federal] administration is making in the dam of human rights law," she said.
Marianne Dugan, CLDC president and a partner in the local law firm Facaros and Dugan, added that because the progressive movement needs activists in every arena, people can contribute the most by doing what they love. "Go with what you were passionate about as a kid," she said.
Being a lawyer, however, requires a certain tempering of emotion that can come off as callous. "I've written briefs where I throw in a bunch of passionate words, but then I cross them out because they're not professional," Dugan said. "You have to tone it down for the judges to convince them you're not an extremist."
We can't count on laws alone to protect our natural resources, Dugan explained. "Laws like NEPA (the National Environmental Policy Act) and the National Forest Management Act are so wimpy. They don't say that people have a right to a clean and healthy environment." If the law doesn't say it, then lawyers can't either — and that's where more radical activists come in.
"You can choose to comply with the rules that have been set up, or you can choose civil disobedience like sitting in the trees and protesting on the street," Dugan said. "We need people doing both."
Don't Get Sad, Get Mad
In the environmental classic Encounters with the Archdruid, author John McPhee pits 1960s firebrand Floyd Dominy, then head of the dam-building Bureau of Reclamation, against David Brower, then executive director of the Sierra Club, in an epic battle over the management of much of the West's ecosystem. One of Brower's allies in that fight was Martin Litton, a man Brower would later call his "conservation conscience for more years than I will ever admit."
At 88 years young, Litton remains "bitter for the cause" as McPhee described him in Archdruid, and he dropped in on the PIELC on Sunday to spread his gospel. He still flies his own 54-year-old Cessna 195 around the West, telephoto lens in tow, documenting scenes of environmental destruction. The former Sierra Club board member (he chose not to renew his board seat years ago) was one of the country's early no-compromise environmentalists, and he helped move parts of the enviro movement further left. Today he often bears resemblance to an environmental Santa Claus in a nice dinner jacket, and he made a few minutes for EW. The excerpts:
Fifty years later, do you still think "no compromise" is the right approach?
When you compromise, you lose. When you're reasonable, you've lost all your fire. You don't want to accomplish anything.
But aren't people apt not to listen if you're not reasonable?
Who cares? I think many people want to be unreasonable – we saw that at the conference. If you sit down with your enemy, it's crazy. I don't mind being ignored, hated. I think we're in desperate straits. The Earth is dying, and we don't want to even recognize it.
You've said that the Earth is not going to die with a bang, but with a whimper. What can we all do to ease the suffering?
It's so hard because it's such a monumental task and each one of us can only do a little. Live frugally. Buy nothing that you can get along without. Never turn on a TV set; I'm guilty of that. Don't be conned by the commercial world. Do something about the rate of reproduction worldwide.
How do you reconcile your own contradictions? You eat steak. You could be a vegetarian.
Yes, but what would the vegetables be? They'd be artificially produced, irrigated. Anything we do as "civilized" beings is counter to nature. All we can say is, we have to do less.
So is "less" the answer?
Yes it is, in a way. In other words, you really shouldn't have to go into any small American town and see that two-thirds of the buildings are closed. Then you go out to one of these shopping malls and see thousands of cars parked there, pavement everywhere. It's destroying our towns. We all have to recognize that it's too late. Nature is gone. Anywhere in the world, you can hardly find a wilderness that's more than a few miles wide.
I'm feeling sad.
Don't feel sad. Feel mad.
So if we get mad, what can we do?
You can call a spade a spade. Do what you were doing over the weekend — look for solutions.
Things Learned at the PIELC
* Groups working to protect the McKenzie River watershed are organizing a major campaign this spring to educate UO/LCC students the community and elected officials about the planned destruction of 2,000 acres of old-growth forest in the watershed, Eugene's source of drinking water. The McKenzie River Protection Project is a new coalition working to raise awareness of old-growth logging in the National Forest; facilitate the expression of public opinion to Forest Service officials; extend the campaign to include fly-fishers, bird watchers and other groups; and recruit more students to get involved. Fifteen student coordinators have already joined the effort, and the entire Earth Day celebration at UO will be dedicated to protecting the McKenzie watershed. For more information, call 346-4377 or e-mail email@example.com
* Oregon's Association of O&C Counties is a private organization made up of county commissioners from around the state. The organization manages about $83 million a year in federal timber receipts, working closely with the federal government and timber industry on decisions that affect the future of millions of acres of public forest lands. "It operates as a private club," says Peg Reagan, a former southern Oregon county commissioner now with the Conservation Leaders Network. "Meetings are not open to the public and they are not subject to public meeting laws." Francis Eatherington of Umpqua Watersheds agrees, and says the organization is "not in conformity with sustained yield practices" mandated by the 1937 congressional act that created O&C lands.
* In all those tsunami stories we never read a word about environmental lawlessness that contributed to the destruction until we heard Hemantha Withanage at the PIELC. An E-LAW lawyer, Withanage is the executive director of the Centre for Environmental Justice in Colomgo, Sri Lanka. He told how buildings were placed too close to the water, natural areas destroyed, and environmental laws disregarded, making the coastline more vulnerable to the disaster. He is working now to advance and enforce environmentally responsible coastal policies and laws, including stricter building regulations and "no-build" zones.
* At least two panelists, and probably more, urged their audience to pick up the little book Don't Think of an Elephant! by George Lakoff. Called "the essential guide for progressives," this book is subtitled "Know your values and frame the debate."
* Here's a jolt to Americans from Pavol Zilincik, a closing keynoter who is the executive director of the Public Interest Law Program and the Center for Public Advocacy in Ponicka Huta, Slovakia. In talking about freedoms and rights, Zilincik said "We (Slovakians) are on the way up and you (Americans) are on the way down."
* Two starkly different strategies for fighting global climate change and promoting U.S. energy independence shared the closing program Sunday in the EMU ballroom. Jeffrey "Free" Luers spoke in an audio recording from the Oregon State Penitentiary where he is serving a 22-and-a- half-year sentence for starting a fire at an SUV dealership to protest global warming. His speech was an articulate, well-researched description of the global damage being done by the "one specie who controls the future of the earth." Dan Carol, political strategist based in Eugene, talked about the Apollo Alliance, a national movement he co-founded to change the framework of the debate and move the U.S. to energy independence. Headed by the presidents of the Sierra Club and the Steelworkers Union, the alliance wants to create jobs by weatherizing homes, developing sustainable businesses and equipment , investing in clean technology and energy, and other avenues. Carol is calling for new alliances across communities of business, labor, and the environ-ment.
* Victoria's Secret mails out more than 395 million catalogs each year and is considered a "leader in forest destruction," according to ForestEthics and other groups working to protect the Canadian boreal forests. In addition to the destruction of forests, Victoria's Secret catalogs contribute to pulp and paper industry pollution, solid waste disposal problems and energy use. Enviro groups are demanding that the company use recycled paper, end the purchase of paper from endangered forests, and ensure that "all suppliers are shifting to Forest Stewardship Council certification." See www.VictoriasDirtySecret.net