has peaked as an effective tool of environmental protection. A replacement philosophy is not yet fully formed, but in 1995 the Clinton Administration released "Reinventing Environmental Regulation", a blueprint for a regulatory regime based upon flexibility with accountability. Unfonunately, this promising approach is being eclipsed by the clamor for other dubious reforms. RETROGRADE REFORMS As noted above, environmental protection remains one of the most popular governmental functions. Conservative Republicans have recently learned that direct assaults on environmental programs are politically self-destructive. Now, the focus has shifted to these three so-called reforms. All three are advanced as pleasant generalities, propositions no reasonable person could dispme. The intended effect, however, is to hobble agencies' ability to address environmental problems without directly aaacking politically popular programs. Property Rights Vber Alles During the Reagan Administration, Attorney General Ed Meese and his staff of eager young conservatives hatched a project that then Solicitor General Charles Fried considered quite radical: ..... to use the takings clause of the Fifth Amendment as a severe brake upon federal and state regulation of business and property."I? Finding only limited success in the courts, the alumni of this new school of takings law have turned their well-financed attention to the Republican Congress and the state legislatures. Through their efforts, a novel conception of takings law is being peddled to legislators as the true faith of the founding fathers and the salvation of free enterprise. The intellectual headpiece of the modern takings movement is Richard Epstein, the eminent torts scholar from the Chicago School of Law. In 1985, Epstein published Takings, on the first page of which he admits that he is not a constitutional law scholar. 18 Still, Epstein amends John Locke's political philosophy of property rights to fit the predilections of the Chicago School of Economics. Using his improvements on Locke's conception of property, Epstein rewires two hundred years of jurisprudence to reach the conclusion that practically all of twentieth-century legislation designed to ameliorate the rough edges of
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the Industrial Revolution (e.g., workers' compensation, minimum wage and maximum hour laws, social security, and income tax) constitutes an unconstitutional taking 19 Actually, the historical precedent for the modern takings movement is not the Founding Fathers, but the legalistic rationalizations for the Gilded Age when, according to Horwitz, "The courts came closest to holding that a property owner had a constitutional right to an unchanging world."20 Jurisprudence aside, the marketability of Epstein's version of the law is self-evident. Epstein's view of when the government owes compensation for a taking has spurred such conservative organizations as the "Defenders of Property Rights' and the "American Legislative Exchange Council" to tout model neo~takings legislation designed to stem the tide of "extreme environmentalism." There are two versions of neo-takings legislation currently being considered. The milder proposal requires a written "takings assessment" before government can act, yet another procedural hurdle that, according to a letter by Attorney General Winston Bryant and 32 other state attorneys general to the members of Congress, "would do nothing to reduce the likelihood of unconstitutional takings." The more radical proposal requires government to compensate landowners when property values have been reduced by a certain percentage because of a regulatory program. Two bills currently pending in Congress adopt this approach: H.R. 925, already passed by the House as part of the "Contract With America", would require compensation for reduction in property values stemming from government efforts to protect wetlands and endangered species; S.B. 605, sponsored by Senator Dole, would require compensation for a 30% reduction in property values caused by any federal regulatory program. In the states, twenty-two have passed some version of takings legislation. Most of these states have passed "assessment" statutes. In 1995, Texas and Florida passed broad compensation statutes, while Mississippi and Louisiana enactments require compensation only for regulatory takings affecting forestry or agricultural land. The most notable state developments were in Arizona, which passed an assess路 ment law, and Washington. which enacted
one of the most stringent compensation statutes considered. In both of these states, these laws were submitted for popular vote through referendum. In both states, the takings measures were rejected by the voters in landslide margins. As testimony to the influence and persistence of the interests promoting the neo-takings trend, legislators in both states vowed to bring back some form of regulatory takings legislation even after a decisive rebuke by the voters. Cost/Benefit Analyses and Risk Assessments As Industry Trump Cards Admittedly, reducing the COStS and benefits of any governmental decision to a "<1>" equation is a practical decision~ making tool, and a methodical approach to comparing the relative risks of different kinds of economic activities is a necessary function of setting regulatory priorities. But in today's political climate, accepting these first premises surrenders the fate of the environment to the contrived world view of opportunistic conservative think tanks and their corporate sponsors. Recent proposals in Congress would mandate extensive cost/benefit analyses and risk assessments for myriad regulato路 ry actions, and would make these exercises subject to judicial review. As a practical matter, these proposals would add more paper shuffling to an already burdensome process and create more opportunities for litigation in a process already mired in the courts. Making speculative exercises such as these procedural mandates covers up their fundamental shortcomings when analyzing environmental issues. For instance, the environment is at an immediate disadvantage in the cost/benefit context. While costs are relatively easy to calculate, environmental benefits are notoriously difficult to reduce to dollar values. The whole exercise begs the question as (0 why economic theories should drive social policy any more than other human values like altruism, aesthetics, or husbandry. As James Boyd White points out in JUSTice as Translation, any attempt to reduce social issues to equations with dollars as the currency of judgment is itself a moral choice that is far from universally accepted: Economics has the greatest difficulty in reflecting the reality of human community and the value of communal institutions. Its necessary lenden-