New version of ‘takings’ bill would cut loopholes

Two of the more controversial bills the Legislature has considered this session may have previously unseen ties. That in itself is not sinister, but as is the case with any sweeping change in legislative philosophy, unintended — or perhaps intended — consequences will quickly multiply.

The first is the so-called takings bill. It would create a process by which landowners could seek compensation from state government for regulatory laws that devalue private property. The concept seems sensible enough, but as former longtime Republican legislator Peter Mills has argued, the actual mechanics of such a law are fraught with pitfalls. Among them are the flood of lawsuits that would likely follow and the games landowners would play to show lost value. The net effect would be weakened environmental laws and haphazard and dangerous development.

Despite reservations from some Republican legislators, the bill, LD 1810, originally sponsored by GOP Rep. Andre Cushing, continued to be discussed by the Judiciary Committee. A minority report — a version of the bill supported by less than a majority in committee members — was drafted by Rep. Les Fossel, a Republican from Alna. Rep. Cushing is now on board with this version. It adds another risky element, a variance that a legislatively created mediation board can grant to landowners for developments that current law might inhibit.

Environmental advocacy groups believe the issuance of such variances are tantamount to cutting loopholes into a well-developed body of regulatory law.

The other controversial bill is Democratic Rep. John Martin’s rewrite of state law on mineral mining. The law was drafted to clear the way for J.D. Irving to apply for open-pit mining on Bald Mountain near Ashland in Aroostook County. Environmental groups are putting the takings bill together with the mining bill and seeing natural resource harvest operations that are able to dance around regulations by waving the “my land is being devalued” banner.

Other controversial and potentially damaging developments could skate through the regulatory process by using high-powered lawyers who build potential takings claims. Businesses or individuals who own ridge or mountain land could claim that regulations denying wind power development create a “taking.” The same “taking” claim might follow denial of landfill expansion proposals.

And if the variance is not sought, or not granted, the state could be on the hook for damages if a landowner succeeds in making the claim that 50 percent or more value has been lost through our carefully crafted environmental laws. The fiscal note on the minority report — the amount of money the state should anticipate spending if it is approved — is set at $1.2 million. But that doesn’t include possible settlements; they will be capped at $400,000 per claim, but at that rate, the tab could climb fast.

These scenarios may border on hyperbole, but the possibility is worrisome enough to suggest a time-out is needed on this bill. And furthermore, the majority report that came out of committee which won bipartisan support is an acceptable way to address the perceived problem. It would create a Regulatory Fairness Committee to evaluate the impacts of regulations on landowners. Changes to such laws would be suggested by the committee, and presumably have the ear of legislators eager to grow the economy.

In the crush of late-session votes, legislators should think long and hard before approving this bill.