Hello friends, it's the Environment Show and welcome. David Lucas expected the case of
the century, but in a 6-3 decision, the United States Supreme Court says Lucas is not entitled
to just compensation. We'll have the story. Also this time, what is India doing to control
its population problem? We'll talk with some Indian officials. And Anthony Cortese returns
from Rio with this. The Environment Show is a national production made possible by the
J.M. Kaplan Fund of New York in this is Bruce Robertson.
Lucas may have lost the battle, but he won the war. According to the majority opinion of
the United States Supreme Court, David Lucas is not entitled to compensation for loss of
his beachfront property in South Carolina. However, the 6-3 decision sends the case back
to the South Carolina State Court system, thus leaving the door open for others in a similar
position in the future. Glenn Sugamelli is senior staff attorney with the National Wildlife
Federation, and he specializes in public land issues.
Mr. Lucas may very well be a loser. They actually sent the case back down to the State Supreme
Court, and they can rule against Lucas on at least two grounds. They can either find
that the use to which Mr. Lucas is going to try to use his property is a nuisance under
state law, and therefore they don't have to pay him. Or they can look again at the issue
about whether he has in fact been denied all use of his property.
The story dates back to 1984, when Lucas bought a 1900 acre development property on the
coast of Isle of Palms in South Carolina. Several years later he made personal plans to
build two homes on two of those beachfront lots. However, because of a state coastline protection
law, Lucas has been prohibited from building on this beachfront property. In passing, the
Beachfront Management Act in 1988, South Carolina lawmakers sought to protect not only the
flora and fauna of coastal zones, but also personal property from damage in hurricanes
and other ocean storms. The Act prohibits building within a certain distance from the waterline
and would consider those who attempt to violate a nuisance. Lucas argues this prohibition
amounts to a taking for which he is entitled to just compensation, as spelled out in the
Fifth Amendment, which reads in part, quote, no private property shall be taken for public
use without just compensation. Now, Lucas is willing to refrain from building, but only
if the state buys his land and pays for it. In fact, he sued the state of South Carolina
and won in a lower court. However, the state appealed to the Carolina Supreme Court, which
overturned the lower court decision. Lucas then took his case to the U.S. Supreme Court
for further consideration. Sugamelli says the essence of the high court's decision is
this. The Supreme Court did not say that your plans or what you would like to do or hope
to do with the property really determines this issue. They are talking about where you
denied all use, not the use that you intended. In other words, it's not enough to show that
he would have liked to have billed a skyscraper on this property and he wasn't allowed
to. Or he would like to have billed a home on the property and he's not allowed to. You
have to show that, and you have to show, and the burden the Supreme Court said is on the
landowner to prove that he has been denied all economically beneficial use of the property.
So that it is tough burden to show that you are not permitted to do anything. In virtually
every case that I can think of, the statute is involving wetlands or endangered species
or mining or other activities prohibit certain types of activities on land, but they don't
prohibit all activities. In fact, further rebuffing Lucas, the Supreme
Court said there may even be times when a property is rendered worthless to the owner,
and yet the owner is still not due compensation. Sugamelli explains.
He also argued as his main argument that whenever the government denies all economically
productive or beneficial use of land, the government always has to pay as an absolute
rule. That was also the position that the Farm Bureau and the mining industry and the
timber industry took in front of the court priest to the Supreme Court. That position was
specifically rejected by the Supreme Court. They said that there is a nuisance exception,
which applies even in cases where all economically productive or beneficial use of land has been
denied by a statute or regulation. So that even in the very, in Supreme Court's words,
extraordinary circumstance or rare situation where 100% of the uses of property have been
denied. You still don't have a taking if the state is acting to prevent what would be
a nuisance under state law. Classic examples of nuisance are pollution, for example.
Another example that Justice Scalia uses is a owner of a lake bed who is denied a permit
to fill in the property. The result of that would have been to flood others land. He
saying that is not a taking to deny the owner of a lake bed a compensation because he was
denied a permit to engage in landfilling that would have the effect of flooding others land.
That is in fact what can and does happen when wetlands are filled. A further explanatory note here,
the South Carolina Coastal Council considered Lucas's plans to build on the beach to have
represented a potential nuisance not only because of damage likely to the ecology of the area,
but also because in a coastal storm flying debris from Lucas's house could damage homes further
inland. Sarah Chasis is a senior attorney with the Natural Resources Defense Council. She
directs the NRDC's Coastal Project, dealing with offshore oil drilling, barrier islands, oil
spills and wetlands issues. In support of the South Carolina Coastal Council case against Lucas,
Chasis filed an amicus or friend of a court brief on behalf of the NRDC and several other major
environmental organizations. And what we stress very much in our brief was the degree to which
building in these fragile coastal areas and on barrier islands poses a hazard to the homeowner
as well as to adjacent property owners by destroying the beach-dune system which acts as a protective
barrier and a source of sand replenishment for the beach. And we laid out the scientific evidence
that exists in the public domain on those issues. And then we also argued how the taking
of jurisprudence that's evolved recognizes that where there is a significant public harm that
a statute is seeking to avert that even if that results in a substantially even total diminution
value that does not necessarily constitute a taking. In other words, the NRDC brief says substantially
the same thing contained in the final court decision, namely that if the use to which the land
would be put constitutes a public threat or nuisance, then the landowner is not entitled to any
compensation for having to forego that use. Lucas had expected a resounding ruling in support of his
case, saying the ruling would be of epic proportions. Environmentalists actually feared the same,
believing the ruling would be landmark and used in many other similar cases pending in lower
courts around the nation. Sugamelli says by keeping the decision narrow and incending it back to the
Carolina courts for further consideration, it turns out the court has not made very much history
after all. And any claims to the contrary by Mr. Lucas and his supporters, I think are
sound and fury signifying nothing. NRDC attorney Sarah Chasis agrees.
The court was very clear that they were dealing only with a situation, an extreme situation where
regulation removes all value of the property and that is not the typical land use zoning case.
It's not the typical wetlands case. Usually there is substantial or significant remaining value to
a person's property after even after such a regulation. So this decision in our view isn't going
to undermine the basic fabric of land use or zoning law or environmental regulation in this country.
Both Chasis and Sugamelli agree that in light of other recent Supreme Court decisions on environmental
issues, this case, Lucas versus the South Carolina Coastal Council seems to indicate that the
high court is balancing itself internally with the more conservative voices being tempered by the
more moderate. David Lucas, who appeared on this show earlier this year at the time he was granted
a hearing by the Supreme Court, was not available for comment this time. The invitation stands. This is
Briss Robertson.
Population control was barely mentioned at the Earth Summit in Brazil, but overpopulation is one of
the biggest threats to the environment today. Nancy Marshall recently returned from a cultural
exchange to India and has this report on efforts to control what will soon be the world's biggest
population.
As soon as you set foot on Indian soil, they surround you.
India's masses are everywhere, carrying you along the streets of her teaming cities,
huddling together intense in her small villages. Westerners stick out like sore thumbs,
beggars flock to us, arms outstretched.
Dr. Sanjeej Sahai is giving a tour of the primary care clinic near the small village of
Kutari in which he practices. Kutari is in the geographic center of India.
One of Dr. Sahai's most important tasks is distributing birth control devices.
Primary planning is sterilization operations in males and females. IECDs,
scopty, third generation IECDs, plus oral pills and what do you call condoms.
Despite his efforts, Dr. Sahai says the population of Maharashtra state in which Kutari village is
located has increased 2.5 percent since India's last census. What's more, the state's infant
mortality rate has fallen from 124 to just 60 deaths per thousand live births per year.
Unfortunately, Sahai says the villagers are still having large families assuming that as in
the past, less than half of their children will reach adulthood.
You see, basically here people are laborers, illiterate and farmers.
If there are more hands to work, they will be more earning. It's not like one man earns
and two children and a wife to spend that money. Here, the more the number of people working,
more will be earnings. Plus, previously it used to be the child mortality rate was more.
You have seven children. When you grow up, means when you are old enough to retire,
you will be having only two, maybe one, because infant and child mortality rates were high.
Now, those things have come down. As in any bureaucracy, Dr. Wasan Pawar, a member of India's parliament,
doesn't seem aware of that reality or perhaps he hasn't experienced it. Pawar represents the
district around the city of Nassik, which has a population of about 240,000. Although he's also
in the state of Maharashtra, he seems far removed from the little village of Katari.
Even if Pawar is right and villagers are getting the message, the Indian government is not letting
up on its efforts at population control and for good reason. Pawar estimates that every second,
three children are born in his country. By the end of this decade, India's population,
currently at 850 million, is expected to balloon to over a billion. India is on a course to
replace China as the world's most populous nation. The government gives out free condoms and
birth control pills and even pays people to undergo sterilization. In fact, Dr. Pawar,
like Dr. Saha, a general practitioner, figures he's performed about 23,000 sterilizations of men
and women since he began his practice in 1976. Currently, Indians are paid 80 rupees,
the equivalent of just over $3 to become sterilized. The government also pays the physicians who perform
the operations. There have been rumors that Indian government officials sometimes siphon off some
or all of the money that's supposed to go to Indians who've been sterilized. That's difficult
to prove and both Pawar and Saha deny it. Pawar emphasizes that India uses persuasion,
not coercion in its efforts at controlling its birth rate. He says the government is required by
law to spend 5% of the national income per year on population control. Do you ever see a situation
where you would have forced abortion as in China? Oh, but there is no force abortion.
Very rarely it is to keep a distance between the two children. The couple approaches the doctor for the
medical termination of pregnancy. No forced abortion. Only in the rural areas are with
improper relationships. And the rural population they may undertake this such type of a forced abortion,
but there are very few cases like that. But for married couples abortion is available if they
so choose. Yeah, they are available. How about for unmarried women is abortion available for them?
It is almost available for unmarried women. Pawar says the Indian parliament is considering other
incentives for small families. Possible legislation would include tax breaks for couples with only
two children. Another proposal would give them preference in the allocation of public housing
and government jobs. In fact, according to Pawar, some members of parliament are debating whether to
introduce legislation that would prohibit those with more than two children from running for
public office or holding government jobs. Though he has three daughters and a son, Pawar insists
he'd vote for such a proposal. But somebody has to do something. You have to start somewhere.
Otherwise it will not come under control. In this 21st century, India will be the number one
in the population's concern. But if the legislation were passed, you would not be eligible to be a member
of parliament? Yeah, that is the suggestion many parliamentarians have made. Those who are having
two children. Pawar admits that with over 50% of India's legislators having more than two children,
the proposed two child limit would go over like a lead balloon. More than 50% must be having more than two children.
So there's probably not much of a chance that the legislation will pass.
Do you think that the legislation was being debated only for political purposes just so that you look
at political purposes? It's not for political purposes. It is to show the people that we are also
concerned about this issue. Regardless of parliament's intent, this seems to be India's version of the
United States, not in my backyard syndrome. Indians agree that population control is good,
as long as it doesn't directly affect them. On top of that, the more than 10% of the Indian
population who are Muslims won't participate in birth control programs at all. Dr. Pawar has
heard horror stories of Muslim nomads who won't allow women to undergo sterilization.
I have seen the Romanian ladies coming to us for the operation, but even again after
her husband comes and he takes away back from that operation theater.
And those nomads and the thousands of illegal aliens in India are very difficult for Indian
census takers to count. So though Dr. Pawar insists the census is perfect, India's population
could be even higher than 850 million. A sobering thought. For the environment show, I'm Nancy Marshall.
Dr. Anthony Cortese is dean of environmental programs at Tufts University in Medford, Massachusetts.
In this position he says it is his responsibility to ensure that Tufts graduates are
environmentally literate. Cortese has just returned from the United Nations Earth Summit in Rio
Dijonero and he is full of new information that will no doubt benefit his students next fall.
They have to wait a few months. We reached him on campus this summer from where he first
reminded us that the Earth Summit was actually a series of eight summits held simultaneously.
The first conference in the history of the world of indigenous people, native Indians, for example,
average in each from Australia. There was a conference of parliamentarians from around the world
because the UN system as usually states or governments are represented by the executive branch
of government. There was a technology conference. There was a conference sponsored by the International
Chamber of Commerce for 500 business people. There was a conference of scientists and academicians.
A conference for non-governmental organizations called Global Forum, who were not
part of all of these groups were not privy to and participating actively in the actual government
conference because the UN conference was for official delegates of the countries themselves.
There was a lot of excitement. The communication was not easy among these different conferences
because there were some 30,000 people in Rio at the same time. To me, what was really exciting
was to see the broad participation by every sector in society in looking at environment and
development issues. I think what happened in Rio is very significant. You may hear press reports
about the fact that not everybody was able to get their way and there were some complaints about
the US position from other countries and from environmentalists. But the matter is that
the real conference established a framework for economic behavior and environmental behavior
for all the countries of the world for the next several decades. Hottasi says the summits
must be judged an important milestone for having redefined two things.
One is the human relationship to the natural environment and the second is the relationship of
countries among themselves because the major issues that were addressed involved the kind of
cooperation, financial, technological and educational cooperation that is going to occur among the
countries of the world. Hottasi says overall the series also must be called a success.
If you look at what was actually accomplished, an 800 page action plan called Agenda 21
on 21 environmental issues for the 21st century was signed by all the countries. An
earth charter was signed that defines the principles by which countries will operate in the future
and also two treaties on biodiversity and global climate change were signed as well.
I view what happened there as the floor, not the ceiling, in what we need to do with environment
and development. I believe it is the first step and a very important step in defining a new world
order in which countries will cooperate to try to meet human needs in a way that protects the
environment and allows these human needs to be met in a sustainable manner for future generations.
Hottasi says what we are likely to see is a strengthening of these agreements over the next decade.
For its unwillingness to sign the biodiversity treaty and for working to modify the climate
change treaty, the United States was criticized rather severely by opponents of these positions,
both at home and abroad. Hottasi says the US position was unfortunate, given that we had been a
world leader in environmental protection for nearly two decades beginning in the 1970s.
But at the summit Hottasi says we lost an opportunity. Because the United States as a technological
leader in the environmental area has had the opportunity to maintain that leadership
and to actually promote a strong industry in the United States. The environmental industry,
the industry that provides environmental consulting services and technical services and
develops and builds pollution control equipment and water treatment equipment for example.
Hottasi says the United States is a very strong industry in the United States. It now
employs two million people. It's a $130 billion business. I believe that with a strong position
of leadership, the United States could make this one of our strongest export industries that will
allow us to remain competitive as a country and at the same time continue the environmental
leadership that I think is necessary on a worldwide basis. Dr. Anthony Cortese, Dean of
Environmental Programs at Tufts University and recently returned from the Earth Summit in Rio.
That's our report on the Environment Show this week. Our special thanks to Nancy Marshall,
whose travel to India was an extraordinary experience. For a cassette copy of this program called
1-800-767-1929, ask for the Environment Show Program Number 131. That's 1-800-767-1929.
Ask for the Environment Show Program Number 131. The Environment Show is a presentation of
national productions solely responsible for its contents. Dr. Alan Shartak, Executive Producer
and this is Bruce Robertson. The Environment Show is made possible by the JM Kaplan Fund of New York.
