Where are the Greenies when you need them? Another "Planning" disaster is underway in Britain

Shouldn't people who believe in conservation be furiously protesting this wanton destruction of hundreds of thousands of perfectly good homes in Britain? They don't seem to be. I think it shows that harassing ordinary people is their real agenda -- not conservation. The policy of the present British government is appalling. Our only hope is that the Prince of Wales may be able to do something. When I was in Glasgow in the 70s I could not believe that the beautiful old stone buildings of "slum" suburbs like the Gorbals had been bulldozed. When I was there, there were enough of them left to see what had been lost. The same buildings in Australia would have been snapped up for gentrification and sold at an enormous profit. The former workingmen's terrace houses of Paddington in Sydney and Carlton in Melbourne are now regarded as enormously desirable and change hands for enormous sums. And the present British government wants to bulldoze hundreds of thousands of the same sort of houses!

"John Prescott has had a busy month. Ten days ago, at a symposium in a hotel near Accrington, his department reaffirmed its determination to flatten thousands of Victorian houses in northern England. On Monday Prescott announced changes to the planning system that would nullify local democracy and accelerate the building of 1.1m homes in London and the southeast. On Wednesday, against the opposition of his own advisers, he gave permission for the tallest block of flats in Europe to be built over shadowing Big Ben and the Houses of Parliament.

Even by his own standards this has been a virtuoso performance of sustained insensitivity. As an arbiter of taste Prescott ranks alongside an East German municipal planner of the 1950s. As a guardian of the environment he has the discrimination of an earthquake. Not since the ill-starred slum clearances and march of the tower blocks in the 1960s have English towns and villages lived in such fear. The north has had the worst of it. Prescott's now notorious "Pathfinder" regeneration schemes threatened the demolition of 400,000 homes in working-class areas across the land from Liverpool to Newcastle.

In prospect it sounded like a new age of enlightenment: investment in run-down urban areas; new administrative networks; consultation with local people; replacement of unsafe or unwanted buildings; new infrastructure. All this, and more, was promised.

However, there was a snag. To earn their Pathfinder grants, local authorities would have to "deliver" demolition quotas. To meet Prescott's aim of creating "sustainable communities", people would have to have their homes knocked down. The more typically northern a street - terrace houses, corner shops, pubs - the more certainly it faced the wrecking ball.

Cash-hungry councils immediately issued compulsory purchase orders on grids of historic Victorian terraces. This blighted local markets and created the very conditions - rock-bottom property prices and zero demand - that were supposed to trigger the clearances in the first place. Owners were offered compensation at current market rates which, being depressed by the threat of demolition, gave them no hope of affording another house.

At Nelson in Lancashire it took two public inquiries and the concerted opposition of English Heritage, the Prince's Foundation, Save Britain's Heritage, the Victorian Society and others before Prescott backed off and local people felt secure in their homes again.

At nearby Darwen, owners of recently refurbished properties, some of them newly mortgaged with unblemished structural surveys, were informed that their homes were unfit for habitation. It made no difference that English Heritage, the government's own official adviser, suggested that in general it was more cost- efficient to restore Victorian houses than to replace them; or that Brian Clancy, a past president of the Institution of Structural Engineers, examined in detail a sample of eight condemned Darwen houses and could find nothing wrong with them. One was "an ideal little first-time buyer house"; others were "an absolute palace" and "an absolutely wonderful property"."

More here







Greenie fanatics in the Federal bureaucracy say that land is a waterway!

Don't mow your lawn without calling a lawyer first - the Army Corps of Engineers might come after you

Developer John Rapanos should be a classic example of the American Dream. Instead, he became the target of a government vendetta that dragged him through a dozen years of litigation and pushed him to the brink of bankruptcy. His story is a cautionary tale about how the Clean Water Act really works.

Rapanos is the son of Greek immigrants who escaped war-torn, socialist Europe to make a better life in Depression-era America. As a boy, John Rapanos played in a hallway spattered with blood and bullet holes. Broke and struggling, the family finally fled from their rough Chicago neighborhood to Midland, Mich., two hours from Detroit. Though they arrived with nothing more than a carload of possessions and their own wits, the Rapanos family prospered, despite anti-immigrant sentiment.

Rapanos' entrepreneurship began at an early age, when he set up a candy stand outside the town's largest employer, Dow Chemical Company. The business succeeded until one of Dow's employees attacked him for being a "dirty Greek" and overturned his stand. Rather than slinking away, Rapanos sought out the chief of police and demanded that the worker apologize. He did.

As a young man, John scraped together all the money he could find in order to buy some real estate. After preparing the property for development, he sold it at a profit, and Rapanos Investments was born. Since then, Rapanos has married, raised six children, and made a fortune, all the while helping Midland grow from a factory town to a "City of Science and Culture." His sons are also developers, but they don't work for him; Rapanos has made them earn their own way.

Unfortunately, the story doesn't stop there. In the 1980s, Rapanos bought a 175-acre cornfield across from the old Dow plant and prepared it for development by leveling the property. When his grading equipment hit the concrete foundation of an old farmhouse that had been on the site, he took a natural sand pile and spread it over the concrete. That incident 20 years ago is why John Rapanos now faces jail time; that's why his family and companies face bankruptcy, and why the property remains undeveloped.

This startling story is just another chapter in Clean Water Act (CWA) enforcement. Passed over President Nixon's veto in 1972, the CWA prohibits the "discharge of any pollutant into navigable water" without a federal permit. The language seems reasonable enough, but the statute has become a charter for federal control over the most local of decisions: real estate development, road building, driveway construction, even farming operations. The law doesn't seem to apply to John Rapanos' land, which consists of cornrows and a damp forest 20 miles from the nearest navigable waterway. But contorted interpretations of terms like pollutant and navigable water have made Rapanos' property as "navigable" as the mighty Mississippi.

The pollutant Rapanos discharged wasn't oil, or nuclear waste, or chemical sludge: just sand. But the Clean Water Act doesn't distinguish between "pollutants," and it covers everything from solid waste to rock, sand, and even heat. In one case, federal regulators required Oregon ranchers to plant trees to block sunlight - which is a pollutant under the CWA.

You might figure that Rapanos' cornfield is not "a water." But, under the CWA, it's not necessary for property to contain any water on its surface to qualify as "a water." A piece of ground need merely meet the definition of "wetland" in the Army Corps of Engineers' "1987 Wetlands Delineation Manual." Legally speaking, if the soil one foot below your property is "saturated" with water for 5% of the growing season - usually eight or ten days between spring and fall - you own "water," not land.

By discharging a "pollutant" into "water," you've taken two steps towards becoming a felon. The third step is whether the "water" is "navigable." Here, the legal issue is more complicated. In the 1824 case Gibbons v. Ogden, the Supreme Court held that Congress' power to regulate interstate commerce extended to ferries providing transportation between New York and New Jersey. In keeping with Gibbons' reasoning that the federal government's power over navigation derives from the Constitution's commerce clause, federal power over American waterways in the 19th century was limited to those used (or capable of being used) as "highways for commerce, over which trade and travel are or may be conducted."

This continued until the 1890s, when Congress passed a series of Rivers and Harbors Acts, making it unlawful to "cast, throw, empty, or unlade" anything into a navigable waterway that might obstruct navigation. Despite these small steps toward federal suzerainty, the government stayed focused on commercial navigation throughout the late 19th and most of the 20th century. But beginning in the 1960s, the focus shifted from protecting waters for navigation's sake to protecting waters for their own sake. This change started with public officials touting rivers as national scenic treasures, and soon took off with an aggressive wave of legislation in the late 1960s and early 1970s. One of these laws was the Clean Water Act.

But even this new rush of laws - aimed at pollution instead of navigation - was limited to "navigable waters," which the law defined simply (if vaguely) as "waters of the United States." In keeping with 150 years of law and tradition, the Army Corps of Engineers, which enforces the CWA, initially applied it to the same waters that the Rivers and Harbors Act covered: waters subject to the ebb and flow of the tide, and waters that were being used or could be used for interstate or foreign commerce. As late as 1974, federal regulations emphasized that federal jurisdiction was determined by "the water body's capability of use by the public for purposes of transportation or commerce."

It was only when environmental fanatics at the Natural Resources Defense Council sued the government, complaining that this definition was too narrow, that things really changed. Judge Aubrey Robinson, Jr., an unabashedly liberal Johnson-appointee, sided with the NRDC and struck down the rules, finding that the term navigable waters "is not limited to the traditional tests of navigability" but requires "federal jurisdiction over the nation's waters to the maximum extent permissible under the Commerce Clause."

Rather than appeal this ruling, the Army Corps of Engineers adopted new rules in 1975, asserting a breathtaking federal authority over everything from "traditionally navigable waters" and "tributaries of navigable waters" to "intrastate waters from which fish were removed and sold in interstate commerce" and any other waters the Corps "determines necessitate regulation" to protect water quality. Efforts to turn back this regulation passed the House of Representatives, but died in the Senate, and the modern age of federal regulation over virtually all water in the nation began.

In 1985, the Supreme Court removed what few limits were left when it ruled in United States v. Riverside Bayview Homes that the CWA could control wetlands "adjacent to" and "bound up with" any navigable river. With the Supreme Court seeming to confirm the "anything goes" version of the law, the Corps pushed its interpretation even further, adopting a new "clarifying" rule extending jurisdiction over any "waters" that might be used by traveling migratory birds, or that might provide habitats for endangered species. These new rules even hinted that the CWA might extend federal control to irrigation ponds, ditches, and swimming pools.

Only in 2001 did the Supreme Court again wade into these muddy waters to restore some limits, in Solid Waste Authority of Northern Cook County v. Army Corps of Engineers. There, the Court struck down the "Migratory Bird Rule," and definitively declared that the CWA does not "extend to ponds that are not adjacent to open water." Anything else, the Court said, would probably render the CWA unconstitutionally broad under the Commerce Clause. The ruling was a relief, but in the four years since, federal courts have sharply disagreed over its meaning. Today, the CWA means one thing in Michigan and Maryland but another thing in Mississippi. The 5th Circuit Court of Appeals had held that the CWA is limited to "navigable-in-fact" waters and immediately adjacent ponds, but the 4th, 6th, and 9th Circuits are ready to allow the federal government control over any body of water from which a single molecule of H2O might end up in a navigable-in-fact water. If a water molecule can seep from your backyard and eventually reach a navigable waterway, then mowing your lawn could be a federal crime. Walking, biking, or driving a vehicle through a protected wetland is considered a felony.

People have no way to tell which interpretation of the law will apply to them; they must either cross the government and risk prosecution, or take federal bureaucrats at their word and submit to what is probably an illegal application of the CWA. Neither is particularly appealing. For a project like leveling a cornfield, it takes a little over two years and costs more than $270,000 to get a permit - assuming no delays. But proceeding without a permit can be even more expensive: a criminal violation of the Clean Water Act brings with it a maximum penalty of 15 years in jail and a $1 million fine; a civil violation means a fine of $32,500 per day of violation, which the government counts as every day that the "pollutant" remains in the "navigable water." Anything left in a wetland for one year could cost an offender almost $12 million - and ignorance is not a defense.

So, when John Rapanos covered the troublesome farmhouse foundation by moving sand from one end of his land to the other, state and federal environmental officials accused him of filling dozens of acres of wetlands with more than 300,000 yards of sand. Former Michigan environmental chief Russ Harding says he's walked every inch of the property and drilled dozens of holes at least five feet deep without finding any evidence that wetlands ever existed there or that fill was brought in, and 300,000 yards of fill would require thousands of truckloads of dirt, something the employees across the street at Dow Chemical would probably have noticed. What's more, the evidence in the government's criminal and civil charges against Rapanos, filed in two separate cases, shows that the government doesn't even agree with itself about where the wetlands are or what portions of the property were filled.

None of this mattered to the federal courts. After 13 years of criminal litigation and 12 years of civil litigation - which has included four appeals to the Supreme Court and more than a half-dozen trips to the Sixth Circuit Court of Appeals - John Rapanos was convicted of CWA violations and sentenced to 10-16 months in federal prison for polluting his so-called wetlands, which connect to a 100-year-old man-made drain, which flows into a non-navigable creek, which, finally, flows into the navigable Kawkawlin River, 20 miles away.

How did events ever get this far? In the opinion of at least one Sixth Circuit judge who heard Rapanos' case, the government engaged in "prosecutorial overkill," in which federal prosecutors compared him to "the devil" and compared "his treeless property . . . to the Warsaw ghetto without Jews." According to federal District Judge Lawrence Zatkoff, who presided over Rapanos' trial, the government came after him because he is "easy to dislike, [and] had the audacity and the temerity to insist upon his constitutional rights."

Judge Zatkoff found that "the average U.S. citizen is incredulous that it can be a crime for which the government demands prison for a person to move dirt or sand from one end of their property to the other end of their property and not impact the public in any way whatsoever," and noted with irritation that prosecutors had claimed Rapanos' act was worse than the Exxon Valdez oil spill. The judge sentenced Rapanos to probation - but the government has asked the Supreme Court to intervene and increase his sentence.

As former Supreme Court Justice Byron White put it,"[o]n a purely linguistic level, it may appear unreasonable to classify 'lands,' wet or otherwise, as 'waters.'" It's even more unreasonable to ruin John Rapanos. A less principled man would have backed off long ago to close the deal, putting expediency ahead of property rights. But Rapanos didn't build a successful life by giving in. The Supreme Court is now considering whether to take his case. For John Rapanos, the case represents an opportunity to win justice and avoid financial ruin and, as with the candy stand from his youth, he won't stop until he's vindicated. For the rest of us, this case is an opportunity to restore sanity to federal power, clarify the meaning of the Clean Water Act, and end absurd federal meddling in local land use.


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MTBE: A Regulatory Pitfall or Cause for Legal Action?

See also my post of 19th

While the gasoline additive MTBE was a relatively small element of the federal government's efforts to address air pollution more than a decade ago, it now occupies center stage as a key issue related to our energy policies, environmental protection, and the fairness of our legal system. MTBE, or methyl tertiary butyl ether, was originally put in use in 1979 when the U.S. Environmental Protection Agency (EPA) approved it as a way to replace lead content and promote cleaner-burning gasoline.

Despite MTBE's role in fighting smog in traffic-congested cities, the chemical has a downside that EPA recognized long ago: When spilled, its water-soluble properties can cause it to seep into groundwater. Use of MTBE expanded greatly in the 1990s after EPA named MTBE one of several gasoline additives approved for use in meeting Clean Air Act mandates. At that time, both EPA and members of Congress recognized that cost and availability factors meant MTBE would be selected to comply with the clean air regulations. Regrettably, as use of MTBE increased in recent years, so did detections of the substance in water supplies.

Let's be clear: No one wants to see MTBE causing problems with water resources. Significant contaminations, which can affect the smell and taste of water and can affect property values, need to be cleaned up by the responsible parties. But companies that merely produced and used MTBE in compliance with the federal laws and regulations should not be dragged into court on the issue.

The U.S. House of Representatives passed a provision in its 2005 energy bill that protects energy producers from lawsuits that are being filed over adding MTBE to gasoline, because the producers' actions were taken to comply with federal law. The Senate should pass the same provision. We are seeing too many exaggerated claims in the media about MTBE today--about the extent of the problem, health impacts, the purpose of the House safe harbor provision, and the ability of responsible parties to clean up spills.

How big is the problem? A January 2005 EPA study found only 16--less than one-half of 1 percent (0.4%)--of 3,776 public water systems in the U.S. have MTBE levels that may require corrective action. How harmful is MTBE to humans? The World Health Organization and National Toxicology Program are among those to report MTBE is not a known or probable carcinogen.

Does the House safe harbor provision of the energy bill take away the responsibility to clean up spills? Absolutely not. Nothing in the House energy bill prevents lawsuits seeking to force responsible parties to clean up MTBE spills. Moreover, a 1999 study by EPA found more than 95 percent of spills are being cleaned up by the responsible parties, often service station owners with underground storage tanks that leaked.

Plaintiffs' lawyers and water suppliers are pinning their legal hopes on having MTBE declared a defective product in court. If they succeed, this fuel additive may become the subject of the next wave of massive litigation reminiscent of the asbestos and tobacco lawsuits. In fact, it's not surprising the MTBE lawsuits are being led by some of the same plaintiffs' lawyers who profited handsomely from asbestos and tobacco lawsuits.

Forging a national policy solution to MTBE would be better than unleashing a flood of MTBE-related lawsuits focusing on details of specific legal claims rather than broad national interests. As lawsuits drag on, policy issues, spills, and clean-up might languish for years.

Important issues surrounding our energy supplies and the environment, including MTBE, need to be addressed. Clearly, the solution should not be found through filing myriad lawsuits against those who were complying with the law.

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Many people would like to be kind to others so Leftists exploit that with their nonsense about equality. Most people want a clean, green environment so Greenies exploit that by inventing all sorts of far-fetched threats to the environment. But for both, the real motive is to promote themselves as wiser and better than everyone else, truth regardless.

Global warming has taken the place of Communism as an absurdity that "liberals" will defend to the death regardless of the evidence showing its folly. Evidence never has mattered to real Leftists

Comments? Email me here. My Home Page is here or here. For times when blogger.com is playing up, there are mirrors of this site here and here.

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