THE AMERICAN DREAM AND THE COMMON GOOD
A graduate project submitted in partial fulfillment of the requirements for the degree of Master of Public Administration
By
Charles Timothy Shates
California State University, Northridge June, 2005
For Sue, my wife, Julia and Tessa, my daughters, and for future generations
ii TABLE OF CONTENTS
Dedication ii
List of Illustrations iv
Abstract v
Introduction 1
Chapter One
Wild Life: The Endangered Species Act 5
Chapter Two
Ground to Stand On: Property Rights 14
Chapter Three
Powers That Be: The Corporation 27
Chapter Four
Trees and Water: The Pacific Lumber Case 46
Chapter Five
Rivers and Highways: The Newhall Ranch Case 53
Conclusion 75
References 87
iii LIST OF ILLUSTRATIONS
Table 1. Projected Forest Seral Type by [Selected] Decades. 48
Figure 1. Newhall Ranch sign on Highway 126. 55
Figure 2. The eventual fate of the orange trees. 56
Figure 3. A cross-section of the Santa Clara River Valley. 57
Figure 4. Industrial park development in the town of Castaic. 58
Table 2. Newhall Ranch project permits and approvals required. 59
Figure 5. On one side of the river, housing in Santa Clarita. 60
Figure 6. On the other side of the river from the housing. 61
Figure 7. Traffic makes its way over a bridge. 63
Figure 8. Shopping center along one side of the river. 64
Figure 9. Southern California’s last wild river. 71
Figure 10. The Santa Clara River. 72
Figure 11. In the same general vicinity, the Santa Clara River. 72
Figure 12. The relatively lightly traveled Highway 126. 73
Figure 13. Zoning began with the best of intentions. 75
iv ABSTRACT
PROPERTY RIGHTS V. ENDANGERED SPECIES
THE AMERICAN DREAM AND THE COMMON GOOD
By
Charles Timothy Shates
Master of Public Administration
This study examines how notions about dominion, self-interest, private property,
and economic growth and how the development of environmental protections, property
rights, and corporations have influenced the shaping of the country. Two illustrative
cases are examined: Pacific Lumber, a large timber-owning concern in Northern
California redwood country, and Newhall Ranch, a large planned community in suburban
Northern Los Angeles County. The study concludes that a sudden, radical paradigm shift
is unlikely, but that accelerated incremental change may result from a convergence of the
ideas of stewardship, traditional liberal democratic problem-solving processes or direct
regulation, and green consumerism—representing fundamental shifts in the definitions of
self-interest and the common good, or public interest.
v INTRODUCTION
The Skeptical Environmentalist, Bjorn Lomborg’s popular book, began with the
assertion “things are getting better” and then the book questioned
the Litany of our ever deteriorating environment...the view of the environment that is shaped by the images and messages that confront us each day on television, in the newspapers, in political statements and in conversations at work and at the kitchen table (2001, p. 1).
Lomborg’s point, ultimately, was not that problems don’t exist. Rather, his pointwas that, while things were not necessarily good, they were better than they used to be.
To prove his position, he cited such factors as improved sanitation, improved nutrition,
and longer life spans. Indeed, modern science has brought a flood of achievements in its
wake. It is just this success that has added credence to the mythology of progress which
is one of the hallmarks of modernism.
It should be noted that findings of fact made by the modern-day United States
Congress are supposed to be based upon the best scientific evidence available at the time.
In public administration, “Any final rule [issued by an administrative agency] must be
based on substantial evidence on the record before the agency at the time of the decision”
(Cooper, 2000, p. 152) [emphasis added]. In the Rules of the House of Representatives,
clauses 2(l)(3)(A) of rule XI, and 2(b)(1) of rule X, require that oversight findings and
recommendations be reflected in all Committee reports (U.S. House, 1998). The
Congress ultimately may make compromises or even disregard findings in the interest of
political expediency; unlike administrative agencies, the Congress is directly accountable
to the electorate. Notwithstanding environmental skeptics, such as Lomborg, who decline to
acknowledge the darker side of material progress, Section 2(a) of the Endangered Species
Act of 1973 begins with a brief enumeration of the following findings of Congress:
(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation; (2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction; (3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people…
The quality of life issues that the human race confronts at the beginning of the 21stcentury are caused, in part, by unbridled freedom in the use and development of private
property, and in part by market failures. Such problems as traffic congestion, poor air
quality, and loss of habitat are often the direct result of man’s economic activities. Many
problems are caused by the way we build; many by the way we extract and use natural
resources.
Efforts to alleviate environmental problems through policy have met with only
mixed success. This is for two reasons. First, symbolic actions give a sense of having
addressed the problem, when they are really only what Smith (1998) called “a suture, an
attempt to hide the wound that contemporary environmentalists are making to the smooth
fabric of productivist discourse” (p. 7). According to Cahn (1995, p. 24), policymakers
create and sell policy outputs to political consumers, addressing the problem symbolically
but failing to address the substantive issues. Second, some of the most successful pieces
of legislation have also been the most contentious. This is to be expected, given that, as
Cahn wrote, “Environmental policy is predicated on regulating the use and development
of private property,” (Ibid., p. 8) while at the same time private property underpins the liberal democratic tradition. To the extent that legislation such as the Endangered
Species Act has been successful in giving environmentalists a tool with which to fight
development interests, there has been also a significant amount of grassroots mobilization
in opposition to environmental regulation and generally in favor of liberal property rights.
This recent mobilization against environmental regulations has been very
successful because it taps into an emotional response to a very powerful American Dream
archetype. Individuals may have different versions of the dream, which has evolved over
the course of American history. (The dream of “a house in the suburbs,” for example, is
a far cry from the dream of “freedom to worship as one pleases.”) In a recent
development on this theme, Rifken’s book, The European Dream (2004), was based on
his observation that the American Dream was in decline and would eventually be
eclipsed by the new European Dream, which stresses personal development and
cooperation within community over competitive accumulation of wealth.
This paper explores the conflict between public policy and individual freedom in
the context of land use and development. Property rights rank among the most important
individual freedoms, but what happens when the exercise of those rights by property
owners interested in developing their land, for example, infringes on a neighbor’s quiet
enjoyment? Before the administrative state came into being, there existed a long history
of common law, the remnant of which is today known as nuisance law, which governed
such infringements.
There exists a strong tension between two fundamentally opposing environmental
philosophies that have shaped the development of the United States. These philosophies
can be summed up as falling under one of two categories of belief about humanity’s place in and relationship to nature. The first category can be called dominion, that which has
guided the expansive aspect of American history. It informs extraction and development
of natural resources, what Smith (1998, p. 5) called “the discourse of productivism.” The
second category can be called stewardship, and it informs the conservation of natural
resources. Freyfogle (2003, pp. 37-38) distinguished these two differing types of energy,
as represented by the terms ‘boomers’ and ‘stickers.’ The latter were noted for their
desire for ‘quiet enjoyment.’
The birth of the modern corporate form of business, not surprisingly on the
dominion side of the equation, has enabled more rapid growth and development of
resources because of its ability to generate greater amounts of capital. Growth and
development is good—to a point. Cells must grow and divide if an organism is to live,
but when cells grow too much, or divide too fast, the result may be harmful to the
organism as a whole. There is a name for this condition and—when malignant—it is
called cancer. CHAPTER ONE
WILD LIFE: THE ENDANGERED SPECIES ACT
In the late 1960s and early 1970s, Congress passed, and the Republican president,
Richard Nixon, signed into law, a number of Acts, among them the National
Environmental Policy Act, the Clean Air Act, and the Clean Water Act, designed to
protect the environment and reverse perceived environmental degradation. The
Endangered Species Act of 1973 (ESA) is a public attempt to address the narrow problem
of species extinction—the loss of biodiversity. Is this a legitimate problem? Species
become extinct as a normal result of the evolutionary process, but scientific evidence has
indicated that man’s activities have accelerated the rates of extinction far beyond the
background levels that existed previously, suggesting that the environmental impact of
these activities is significant. Detractors literally tend to miss the forest for the trees,
asking would we rather save an owl or our economic livelihoods. But the bigger picture
is far more insidious—for if all these other species are dying maybe man’s environment
is becoming unsuitable for man as well. It is particularly distressing to some scientists
that the world’s amphibians are rapidly disappearing. These creatures are considered
“indicator species,” like the miner’s canary that indicates when it is no longer safe in the
mine. The reason that animals such as frogs are so susceptible to environmental
degradation is in the nature of their biology. Frogs have numerous capillaries near the
surface of their skin and obtain a large portion of their oxygen directly from the air and
water to which they are exposed. The fact that they have been disappearing has scientists
alarmed. The U.S. Geological Survey has instituted a “frog watch,” asking volunteer citizens to report on their observations around the country (Where have all the frogs
gone?, 2002).
From a Darwinian perspective, perhaps man is, by virtue of his large brain,
destined to outlive many “weaker” species in his built environment. Assuming this is the
case, man must still make the utilitarian determination as to which species are essential to
cultivate for providing his basic needs: air, water, food, medicine, clothing, and shelter.
Until man has attained complete understanding of the biochemistry that underlies all life,
any loss in biodiversity should be looked upon as an opportunity cost. For example,
recently researchers in San Diego have discovered a new species of oceanic bacteria that
naturally produces a previously unknown compound that shows promise of being
effective in treating cancer (Wilson, 2003). The popular movie Medicine Man
(McTiernan, 1992), dramatizes this theme, suggesting perhaps it is better not to burn the
forest in the name of progress before such beneficial creatures can be discovered.
The ESA has been one of environmentalists’ most powerful weapons against
careless enterprise, but has been under attack recently by those who feel government
regulations infringe upon their property rights. In recent court cases, private property
owners have brought suits questioning the government’s ability to interfere with
development on private property. In Rancho Viejo, LLC v. Gale A. Norton, Secretary of
San Diego County and a survey, conducted to comply with the ESA, found that the
development would likely disturb the habitat of a group of endangered arroyo toads in the
area. Rather than accepting an alternative plan proposed by the Fish and Wildlife
Service, the plaintiff filed suit claiming the “the application of the ESA is unconstitutional because the federal government does not have the authority under the
Commerce Clause to regulate private lands in order to protect the arroyo toads on those
lands, because the toads live entirely within California.” The United States District Court
for the District of Columbia entered summary judgement on behalf of the defendants and
plaintiff appealed. Although plaintiff lost on appeal, the dissenting opinion suggests that
perhaps a gradual shift has been taking place, and that the pendulum is now beginning to
swing the other way—in favor of the industrial paradigm.
The following case, dealing with state property, demonstrates the weight of the
Endangered Species Act as a federal issue. “In Palila v. Hawaii Dep’t of Land and
ownership interest in wildlife a step further. In Palila, the court upheld the Endangered
Species Act, as applied to nonmigratory species found on state lands, on the basis of the
treaty power and commerce clause. It nonetheless suggested that the ‘importance of
preserving such a national resource [as endangered species] may be of such magnitude as
to rise to the level of a federal property interest’” (Bean & Rowland, 1997, p. 22).
California has usually mirrored the federal environmental laws, sometimes
anticipating them. In the 10th Edition of The Guide to the California Environmental
important court cases relevant to the issue of the California Endangered Species Act
(CESA). The authors discuss how CESA relates to the California Environmental Quality
Act (CEQA), and also how the latter relates to the National Environmental Policy Act
(NEPA ). CEQA was passed in 1970 (Public Resources Code Sec. 21000, et seq.) to require
public agency decision makers—such as, for example, a county board of supervisors
about to approve a development project—to consider the environmental consequences of
their actions. Although CEQA is compared to the National Environmental Policy Act
(NEPA) that was passed a year earlier, and upon which CEQA is modeled, the authors
point out that “Unlike NEPA, CEQA has not been characterized as merely a ‘procedural’
statute. Rather, CEQA contains a ‘substantive mandate’ that public agencies refrain from
approving projects with significant environmental effects if ‘there are feasible
alternatives or mitigation measures’ that can substantially lessen or avoid those effects”
(Remy, et al., pp. 2-3). Also, because the environmental review process involves the
public, it has become a means of enabling democratic participation. “Thus, the California
Supreme Court has stated that the CEQA process ‘protects not only the environment but
also informed self-government’” (Ibid., p. 3).
The procedural devices, as the authors call them, of the CEQA environmental
review can be viewed as various steps in the process. The most familiar of these
procedures is the preparation of an Environmental Impact Report, or EIR. The following
‘steps’ are not sequential; the negative declaration bypasses the EIR process, for example.
Simply enumerated, they are as follows: (1) the initial study, (2) the negative declaration,
(3) notice of preparation of an EIR, (4) draft EIR, (5) public review of (a) negative
declaration or (b) draft EIR, (6) written responses to comments on draft EIRs, (7)
certification of a final EIR, (8) mitigation reporting or monitoring program, and (9)
statement of overriding considerations. The principles governing the interpretation of CEQA are illustrated by important
California Supreme Court cases. CEQA was interpreted the first time in 1972 in the
landmark case Friends of Mammoth v. Board of Supervisors. In its decision the Court set
forth the principle that CEQA should be broadly construed “within the reasonable scope
of its language” to protect the environment. In later cases, “the court hinted that other
considerations may take their place alongside ‘the fullest possible protection for the
environment’… While the court neither distinguished Friends of Mammoth nor explicitly
rejected it, the court’s willingness to consider economic factors arguably departed from
the interpretive principle announced in the 1972 decision” (Remy, et al., p. 7).