Re: Institutional Controls & the Constitution

[Peter Strauss <pstrauss@igc.org>]

The issue of institutional controls brings out a larger issue in
remediation decisions: that is, how can we account for the opportunity
cost of contaminated land held out of use. This applies not only to land
 that will be protected by institutional controls in perpetuity, but also
to remedies that take longer to achieve standards so that they can be
released for unrestricted use. For instance, if natural attenuation
takes twices as long to achieve remediation goals, how do we account for
the cost of the land that is held out of use?

The opportunity cost of land is to the best of my knowledge not addressed
in feasibility studies. How should we do this?

Peter Strauss

Lenny Siegel wrote:
>
> Subject: Institutional Controls: The Current Insanity of Environmental
> No
> Action!
> Date: Tue, 07 Jul 1998 21:34:30 -0500
> From: Steven Pollack <themissinglink@eznetinc.com>
> Reply-To: steve@familyjeweler.com
> Organization: The Missing Link
> To: lsiegel@cpeo.org
>
> (Lenny, please post)
>
> Yes, lets just fence off all the sections of the United
> States which contain contamination. Lets destroy future freedoms of
> life,
> liberty, and the pursuit of happiness on (X)% of the USA. Is 5%
> acceptable? 10%, 20%, 30%? Again we reduce environmental hazards to
> local
> issues when we had just begun to understand that they are regional and
> global in nature.
>
> I can just imagine that the cost/benefit analysis in just about every
> Feasibility Study will conclude that $10,000 of fencing is advantageous
> and
> preferable to expensive and uncertain remediation. The fact that the
> capping option is currently the order of the day is proof that the
> regulators take the path of least resistance, least expense, and least
> environmental remediation.
>
> Insofar as institutional controls apply to military installations, I
> believe
> the Third Amendment to the Constitution would prohibit this as a long
> term
> solution. I begin this discussion with part of Lenny Siegel's message
> today:
>
> "5. In several sections of the Manual, the work group discusses takings
> and
> compensation issues. Although it is appropriate to identify the issue,
> the
> discussions of these issues should indicate that takings would not
> necessarily occur and compensation would not necessarily be required.
> The
> current language implies that any time a regulator imposes a use
> restriction, such restriction would effect a takings. The current state
> of
> the law, however, does not support such a conclusion. Rather, some case
> law
> indicates that it is the contamination, and not the regulatory action,
> that
> effects the loss of use and value."
>
> The Third Amendment states: "No soldier shall, in time of peace, be
> quartered in any house without the consent of the owner, nor in time of
> war
> but in a manner to be prescribed by law."
>
> This Constitutional Amendment is not about whether the Army has the
> right to
> use your house during wartime. They do have that right under the
> takings
> clause of the Fifth Amendment. They can condemn your property under
> Eminent
> Domain and kick you out with "just compensation". What the Third
> Amendment
> addresses is the scope of intrusion, and interference, of the Army, into
> the
> lives of private citizens. Institutional controls are a barrier to
> LIBERTY! Liberty of ourselves and our posterity are guaranteed in the
> preamble to the Constitution. I ask each of you to look up liberty in
> your
> dictionary. Every one of the definitions is contrary to institutional
> controls.
>
> Institutional controls abridge Americans' rights of land ownership and
> freedom of movement. Protecting toxic waste from human contact is not
> the
> public use which is the precondition for condemnation under the Fifth
> Amendment. Clean it up!
>
> You may say to yourselves that I am taking this to an excessive
> interpretation of the Constitution. Is free speech taken to an
> excessive
> interpretation as applied to campaign contributions? Is illegal search
> and
> seizure taken to an excessive interpretation when criminals are let off
> on
> technicalities of probable cause? Is cruel and unusual punishment
> interpretation excessive when it demands television in prison and
> better
> health care than the average working person?
>
> I am tired of hearing that the protective missions of the military
> mitigate
> their guilt in being the worst environmental offender in the country.
> There

> is nothing more un-American than polluting America and poisoning
> Americans!
> Nothing besides erecting a fence as the final remediation of their toxic
> contamination!
>
> Steven Pollack
> steve@familyjeweler.com
> http://www.familyjeweler.com/fortweb.htm
>
> --
>
> Lenny Siegel
> Director, Center for Public Environmental Oversight
> c/o PSC, 222B View St., Mountain View, CA 94041
> Voice: 650/961-8918 or 650/969-1545
> Fax: 650/968-1126
> lsiegel@cpeo.org