About the Environmental Justice Program
October 18, 1995
I am Bishop John McRaith, the bishop of Owensboro, KY, and offer
this testimony on behalf of the United States Conference of Catholic
Bishops, the public policy agency of the U.S. Roman Catholic bishops.
I serve as a member of the USCCB's Domestic Policy Committee and
Chair of the Subcommittee on Food, Agriculture, and the Environment.
I offer this testimony not as a partisan or as an ideological
combatant, but as a pastor and religious teacher. I represent
a religious tradition that affirms the principle of private property,
focuses on the common good and assesses policies for how they
touch the life and dignity of the human person.
I present this testimony specifically because of our concern
that the takings issue, which raises fundamental value questions
about how we balance the moral goods of private property and the
common good, is being debated in a very polarized atmosphere.
In our judgement, a series of false choices has been created.
Some aspects of the public debate seem to either characterize
all regulations and the government as unneeded, inept, and meddling
or all private property interests as only self seeking. Like any
false choice, these exaggerated caricatures risk opening up damaging
fractures in society, particularly in local communities.
At the outset, we urge lowering the volume, restraining the righteousness
and rhetoric on all sides and returning to search for common sense,
the common good, and common ground on this vital issue.
We recognize the legitimacy of the need to balance the concerns
of private property owners with the collective good of society
as a whole. We also realize the complexity of the task. We do
not come to provide a technical solution but rather to offer an
ethical context and some modest measures to address the issue.
While regulatory problems exist and practical solutions must be
found, we are concerned that S. 605, The Omnibus Property Rights
Act of 1995, will create an unneeded and sweeping new legal
regime which could diminish current governmental protections of
the environment, health, and safety. Therefore, we urge you to
take a more measured examination of this issue without rushing
into a quick fix for a complicated problem.
The underlying debate over takings is about values, attitudes
and interests. It is about what type of society we want to be.
Pope John Paul II has observed a sense of “crisis within
democracies themselves, which seem at times to have lost the ability
to make decisions aimed at the common good.”1
There is a “growing inability to situate particular interests
within the framework of a coherent vision of the common good.”
Will our society move more toward extreme notions of the individual
where “private rights” become a wall of separation
from others and a rejection of responsibilities for the common
good; or will we choose to be a society where “private rights”
are seen as a way to participate in a common effort to build a
society of true freedom and justice? Will excessive regulation
ignore the economic and other consequences of administrative judgements
which can hurt families and other entities, or will regulation
serve to protect the environment while at the same time enhancing
the economic and social vibrancy of local communities?
In addressing takings, we would like to: (1) provide some elements
of a moral framework for analyzing the rights and responsibilities
of private property owners in relationship to other neighboring
private property owners and to the common good, and the role of
government in balancing these rights and responsibilities; (2)
apply this framework to help analyze the takings issue in general
and S. 605 in particular; and (3) offer several suggestions for
addressing the underlying concerns in a more reasoned and common
sense manner.
We offer from our Catholic tradition a moral framework for considering
the rights and responsibilities of private property owners to
other owners and to the common good. In this regard, we wish to
make three major points:
- private property is a moral good, though a limited one entailing
responsibilities as well as rights;
- in promoting the common good, government plays a necessary
and legitimate role in balancing the private and public dimensions
of the common good for the benefit of the entire society, the
wider human family and future generations; and
- with respect to public health and welfare, safety, and the
environment, government has special responsibilities because
unrestrained private efforts and market forces sometimes do
not promote the common good, especially as it relates to regional
and global problems and our responsibilities to future generations.
(1) Private Property and the Common Good. As moral concepts,
private property and the common good share an origin in the doctrine
of the common purpose of creation. Both private property and the
common good are necessary to human flourishing and progress. While
property rights look to the flourishing of individuals or small
groups, the common good is directed to the flourishing of whole
societies, of the wider human community, and indeed the whole
of creation.2 Property rights serve as an essential
guarantee that individuals, families, and other groups have a
share in the fullness of God's creation. As an entitlement, private
property helps to insure that individuals have a stake in the
common good of creation itself. Promotion and protection of the
common good help insure that the needs of the public are met in
a way that the whole of society has a stake in the benefits and
burdens of caring for the common good.
Thus, legitimate ownership and the proper use of private property
is a clear moral good. It is, nonetheless, a limited good conditioned
by its contribution to the common good, namely, the flourishing
of the whole society. Pope John Paul II, reiterating the Church's
traditional teaching, places private property and its use in a
well-ordered framework when he states that:
It is necessary to state once more the characteristic principle
of Christian social doctrine: the goods of this world are originally
meant for all. The right to private property is valid and
necessary, but it does not nullify the value of this principle.
Private property, in fact, is under a 'social mortgage', which
means that it has an intrinsically social function, based upon
and justified precisely by the principle of the universal destination
of goods. (On Social Concern, #42)
In relation to the current debate over “takings,”
Pope John Paul II's notion of a social mortgage has two implications.
First, people have a right to property as a means to their living
with dignity. Secondly, property is a limited right in relation
to the needs of others and in relation to broader conditions of
life necessary for the society as a whole to flourish. Thus, the
right to private property is circumscribed by inherent limitations
and social responsibilities. Even John Locke, who has contributed
greatly to our idea of private property, held that ownership was
subject to 'a proviso' that others were not in need, and that
the common purpose of created things required those with surplus
yield to share the fruit of their labor with the needy.3
The limitation on the right to private property as a result of
social responsibilities has practical consequences. First, beyond
the level of sufficiency, one may limit, by taxation for example,
private accumulation of goods for the sake of ensuring that everyone
in a society has access to the basic necessities for leading his
or her life in dignity; second, all members of a society are obligated
to restrain themselves, and government is required to regulate
and to safeguard conditions needed for the protection and progress
of the broader society.
(2) Government and the Common Good. With everyone having
both rights and duties, it is the responsibility of society and
the government to coordinate efforts at achieving the common good.
In Catholic moral tradition, therefore, the government exercises
a positive moral function. In the first instance, it is responsible
for supporting, stimulating and coordinating private initiatives.
But where voluntary efforts fail to safeguard and promote the
common good, then the government has a right and an obligation
to legislate to insure that private actors act in support of the
commonweal within the context of overall respect for human rights.
John Paul II again has specifically referred to the legitimate
role of the government in addressing larger common good issues.
In Centesimus Annus, he states that:
It is the task of the Government to provide for the defense and
preservation of common goods such as the natural and human environments,
which cannot be safeguarded simply by market forces … the
Government and all of society have the duty of defending those
collective goods, which among others, constitute the essential
goals for the legitimate pursuit of personal goals on the part
of each individual.4
Our moral tradition recognizes that the government is a creation
of the society in which it is embedded and not the other way around.
While government should never as a matter of principle interfere
with other elements of society when those elements of the community,
e.g., the family, or markets are exercising their legitimate functions,
it does have an obligation to coordinate these other elements
of society to achieve the common good. It also has the right,
responsibility, and duty, when other actors in society are not
able by themselves or together to protect health, safety, and
the environment, to do so. Certainly, the environment and ecological
systems, which can cover vast geographical areas and cross government
lines and national boundaries, require some degree of government
regulation if the common good goal of protecting the environment
for the whole public is to be achieved.
This does not mean that the government has an unlimited right
to regulate even for the common good. The government can overstep
its responsibilities and rights in regulating. You and we have
heard of situations where government has reached too far or acted
inappropriately in an abuse of its legitimate role. However, in
our judgement, Congressional effort would be spent better trying
to review the policy application of existing environmental laws
and regulations adjusting, and improving them to meet better the
goals and protection society needs rather than expanding regulatory
compensation mechanisms as S. 605 does in some of its provisions.
Let us deal with these excesses and abuses without undermining
the legitimate role of government and society in restraining private
actions which threaten the common good.
(3) Environment as a Common Good Concern. The environment
serves as a classic case of a clear common good issue. It is a
gift from God to everyone, not something owned or controlled by
any one nation or privately by any individual or group. A healthy
or an unhealthy environment accrues to the benefit or harm of
everyone. Everyone has a right to a healthy environment. Care
for land, water, and air is everyone's responsibility. No one
sector of society—individuals, neighborhoods, markets, mediating
communities or institutions, or the government—has the sole
responsibility for caring for the environment. If the rights of
individual property owners are out of balance with the rights
of other owners or the rights of others in the broader society,
it undermines the common good. Conversely, if environmental concerns
are exaggerated to the detriment of the legitimate needs of individuals
and groups, those individuals, groups, and society cannot progress.
The need is to strike the requisite balance between private property
interests and the legitimate role of government in regulating
for the common good, especially for the environment.
From a religious and moral perspective, what seems to be lacking
in the current discussion is talk about notions of stewardship
which imply not only responsibility for the care of those things
in our possession, but even notions of voluntary restraint and
sacrifices of our uses of private property for the sake of the
common good. In his most recent encyclical, The Gospel of Life,
Pope John Paul II states that:
… man has a specific responsibility towards the environment
in which he lives, towards the creation which God has put
at the service of his personal dignity, of his life, not only
for the present but also for future generations. It is the ecological
question -- ranging from the preservation of the natural habitats
of the different species of animals and other forms of life to
“human ecology” properly speaking which finds in the
Bible clear and strong ethical direction, leading to a solution
which respects the great good of life, of every life. In fact,
“the dominion” granted to man by the Creator is not
an absolute power, nor can one speak of a freedom to “use
and misuse,” or to dispose of things as one pleases …5
The starting point for the debate on takings is based on the Fifth
Amendment to our Constitution, which states “… nor
shall private property be taken for public use without just compensation.”
Property has traditionally referred to land, buildings, rents,
and tools—all required to provide basic necessities. If the
government, in its legitimate role of protecting the common good,
takes this property, then the government must compensate the owner(s)
according to a fair market value.
This right to own and use property is enshrined in our religious
tradition and in our Constitution and legal system helping to
ensure one of our most fundamental rights as citizens—namely
to own property free from the threat of government seizure unless
justly compensated. However, what is also inherent in the Constitutional
framers' words was the capacity for the government to “take”
private property for the good of the public in exchange for compensation.
The genius of the Constitution was the remarkable balance created
between the rights of individuals and the needs of the public
at large. The constitutional and the history of the court actions
certainly seem to abrogate any notion of absolutism in protecting
private property rights apart from common good needs.
In more recent times, the courts have begun to address and grapple
with just how far the government, acting on behalf of the public,
can regulate, as distinguished from taking, private
property for public purposes without compensation. Given the complexity
of modern society and its economy, government protection through
regulation, and not just seizure, has expanded as a way to protect
vital national and public interests. Some of this regulation has
been criticized as unnecessary, capricious, costly, and in some
instances, the courts have found uncompensated takings. At times,
small landholders, small business owners, family farmers, and
the average American homeowner can be bewildered by the maze of
regulations and may on occasion suffer hardship in seeking redress.
We do not ignore these realities.
S. 605 purports to provide guidance to the courts and to federal
administrative agencies in knowing when to compensate private
property owners for regulatory actions. However, in our judgement,
the legislation goes too far by elevating private interests over
the government's ability to protect the common good in areas like
the environment. Expanding the triggers for compensation based
on affected portions of property could significantly alter the
proper balance among various neighboring groups of private property
owners and the public's interest in environmental and public health
and safety. By creating lower thresholds for initiating takings
actions by private concerns, by inhibiting the government's legitimate
ability to enforce regulations already on the books by requiring
excessive impact analyses, and by increasing taxpayer costs for
new and expanded takings compensations, the legislation goes much
further than necessary to address what some perceive as overregulation
under current law.
Given our teaching on private property and the common good,
the US Catholic Conference is very concerned about legislative
proposals to expand vastly the concept of property rights in which
both the social purpose of private ownership and the social responsibilities
(and moral limits) of property owners are diminished. It could
give acquisitive individualism a trump over the responsibilities
and obligation of individuals and groups, and especially of government,
to the common good. We prefer a more modest approach in assessing
regulation for its human, economic, social, and environmental
consequences.
If the Congress wishes to provide some further relief to private
property owners facing regulatory difficulties, there are alternative
approaches to those offered in S. 605 that should be further discussed
and considered. Given the principles which shape our moral tradition
regarding private property and the common good, these alternative
approaches are also shaped by certain guidelines.
First, laws should fully protect society while avoiding the
imposition of unwarranted burdens. To the extent that there
are objections to certain regulations, we suggest as a first step
that the Congress debate and address directly the potential changes
needed in current laws and regulations rather than adopt more
rigid and expansive property notions and automatic compensation
procedures as contained in the proposed legislation. This debate
could be supplemented by improving community involvement in common
sense local solutions, developing community feedback mechanisms,
and improved training of regulatory officials.
Second, a more flexible approach in implementing regulatory
measures as they affect small property owners should be considered.
At times, these owners may encounter particular difficulty in
meeting government requirements. Special regulatory accommodation
could be made for families as homeowners, small businesses, and
small family farmers, especially those of modest means. We must
remember that large numbers of Americans own little property and
certainly not property of great economic value. It is important
to recognize, however, that regulation is often needed to protect
the homes and jobs of average Americans. We need to distinguish
carefully between governmental action and regulations that can
mean the difference between economic survival and demise of families
and small businesses, and larger enterprises where these realities
simply effect their profit margins.
Third, there is a need to develop ways to expedite judicial
proceedings in takings cases to make them more efficient and less
costly. Consideration should be given to alternative dispute
mechanisms, including arbitration, the use of Ombudsmen, and speedier
permit processing, thereby reducing the reliance on litigation
in takings disputes. In situations when a takings claim is made,
the goal should be to speed up the process of resolution and compensation
when warranted. Our society in general relies too often on litigation
to resolve problems. Litigation is an expensive process, particularly
for small property owners. The goal is to make the system fairer
and limit the cost of the claims procedures for all parties involved.
In this regard, some elements of Title III, Alternative Dispute
Resolution, of S. 605 deserve serious consideration.
In closing, we want to stress the need for taking the time to
truly promote a larger civic dialogue about the kind of environmental
and other goals and protections this nation wants to support in
pursuit of the common good. Without doing this, we risk the danger
of a further polarization of society between narrower private
interests and larger public concerns. Avoiding a new public debate
and consensus over these matters and adopting too rapidly an expansion
of private property rights could undermine both respect for private
property and the common good.
Our hope is that the takings issue can serve as a way to begin
a broader debate to look more closely, as a society, at how we
can continue to promote both private property and the environment
as matters of the common good and not create a house divided against
itself.
As advocates of both private property and the common good, we
urge you to think deeply, to consult broadly and to weigh carefully
before you act decisively to reorder the relationship between
private interests and public goals. We believe there are more
modest and common sense approaches which will disappoint the extremes
on these issues, but can serve better the nation and promote the
common good.
1Pope John Paul II, Centesimus Annus, #47, May
1, 1991
2Pope John Paul II. On Social Concern, #26,
December, 30, 1987
3Melden, A.I. Rights and Persons, 1978.
4Centesimus Annus, op. Cit., #40
5Pope John Paul II. Gospel of Life, #42, March
25, 1995.