Commentary: Scrap the “Common Property Amendment"

Proposal 9 declares that the people have a right to a clean environment and gives the green light to the Conservation Law Foundation to sue to get it. The state’s natural resources, it states, are “the common property of all the people”. Here comes the feudal King, and there goes  243 years of freehold and liberty.

Nine proposed constitutional amendments, some of them far reaching, have been introduced in the Vermont Senate. One in particular stands out as a mortal threat to fundamental Vermont principles. That is Proposal 9, with fifteen co-sponsors:  “to provide that the citizens of the State have a right to a clean environment.” This new right would be added to the Vermont Declaration of Rights, our brilliant 18th Century charter of liberty that has never before been amended.

Who could be opposed to “a clean environment”? No one. But PR9 doesn’t merely affirm that Vermonters want “a clean environment”. It goes on to spell out “that the people have a right to clean air and water and the preservation of the natural, scenic and cultural values of the environment. The State of Vermont’s natural resources are the common property of all the people. The State shall conserve and maintain the natural resources of Vermont for the benefit of all the people.”

Let’s be crystal clear about what this means. The most obvious of Vermont’s natural resources is its land. PR9 declares that your property in that natural resource is hereafter only yours in the sense that (maybe) you can keep people out and (surely) that each year you will be assessed property taxes on its value.

After 243 years of freehold and liberty, PR9 would establish the all-powerful State, like the kings of old, as the owner of the “common property of all the people”. The State would instruct you, reduced to “occupant”, on how you must “conserve and maintain that resource for the benefit of all the people.”

How did this come about?  The advocates essentially copied PR9 from Article I Sec.27 of the Pennsylvania Constitution, approved in 1971. For 46 years that section had little effect, but in 2017 a more liberal Supreme Court held that even if landowners complied with environmental regulation, courts could find that the regulation did not go far enough to satisfy the unspecified requirements of Sec. 27.

That decision gave environmentalists a green light to sue to expand or replace any regulation that a court might find insufficiently protective of the State’s common property, formerly known as the private property of its citizens.

How to seize this opportunity was spelled out in a legal monograph published in 2016 at Widener School of Law. It focused not on land use but on an environmental menace that, in the authors’ view, threatened everyone’s Sec.27 rights: climate change. Here’s a sample conclusion:

“Because a stable climate not disrupted by human-caused greenhouse gas emissions is a right protected under [Sec.27’s] first clause and a public natural resource for which the Commonwealth is a trustee, [Sec. 27’s] text directs that the Commonwealth shall ‘conserve and maintain’ that stable climate for ‘all the people, including generations yet to come.’” As if there ever was a “stable climate”.

The monograph urges lawsuits to force the State to adopt “a regulation establishing an economy-wide cap-and-trade program with an [emissions] auction with a reserve price of the sort established pursuant to the California Global Warming Solutions Act.” That Act, incidentally, is almost identical to its Vermont counterpart (Act 168 of 2006). Last month the Vermont House passed GWSA amendments (H.688) to make bureaucratic enforcement of updated emission goals a mandatory requirement (that no legislator will ever vote on).

If PR9 is passed and approved by the voters in 2022, there is little doubt but what a group like the Conservation Law Foundation, in lock step with VPIRG and VNRC, will sue the State of Vermont for failing to regulate and tax enough to curtail carbon dioxide emissions, in the vain hope of producing some detectable effect on the planet’s climate.

CLF has already successfully sued the Commonwealth of Massachusetts under its GWSA for not doing enough to defeat the menace of climate change. Gov. Charlie Baker’s flagship response is a steep and rising carbon tax on motor fuel to get Bay State citizens to give up their gasoline and diesel fueled vehicles. This is the multistate Transportation and Climate Initiative (TCI), that climate activists here are pressuring Gov. Scott to sign onto.

Add all of this up, and here’s the Climate Action program you’ll get: GWSA, to direct the regulatory bureaucracy to do anything it thinks it needs to do to meet arbitrary carbon dioxide emissions goals; TCI, to drive up motor fuel prices; and finally PR9, a constitutional requirement that environmental groups can and will use to get the courts to order the regulators to move further and faster to take more control over “the common property of all the people”, that until now (since 1777) you thought belonged to you.

At last – the Perfect Little Climate Conscious State, aka the Green Common Property Police State. Don’t say you weren’t warned.

John McClaughry is vice president of the Ethan Allen Institute

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