One of the classic objections to environmental regulations is that they interfere with the rights of a landowner. A person or a corporation resents being told that they cannot dump sewage or industrial waste into a river or lake or smoke into the air. “After all,” they say, “we always used to be able to do that.”
There are also situations where the complainer is not a landowner, but a land user. A prime example is the rancher who grazes cattle on public lands. He pays a fee much, much lower than if he were grazing on privately owned lands. And he complains bitterly if told the fee is going up, or if the number of cattle he is allowed to put on the land is reduced in the name of protecting the land and streams. “After all,” he cries, “We’ve been doing this for generations! How dare you defy tradition!”
It’s not just a matter of property rights or grazing rights. That’s how it is usually presented, as by the supporters of Cliven Bundy, who seized the Malheur National Wildlife Refuge in Oregon a few years ago. Bundy had refused for years to pay the necessary fees for grazing his cattle on federal lands in Nevada, claiming that the Federal government lacked the authority to manage public lands. The seizure led to a prolonged standoff with law enforcement, one death, arrests, and trials. Eleven of Bundy’s supporters pled guilty; his sons were acquitted.
But the issue is broader than the usual terminology suggests. The public lands affected include rangelands, forests, wilderness areas, and wildlife refuges. The legislation that governs them often specifies that they should be managed for “multiple use,” meaning use for recreation, conservation, and exploitation (grazing, mining, timber cutting, etc.). According to the U.S. Department of Justice, “For historical reasons, the statutorily sanctioned timber and grazing uses of
lands have resulted not only in the expectation by ranchers and the timber industry that these uses will continue unabated, but [also] similar expectations in communities whose livelihood depends on the persistence of these uses.”
The broader issue is thus that of “traditional expectations of land use,” not property or graxing or dumping rights. “We’ve always done it this way. You have no business changing the rules!” Or, “Grandpa did it this way. Why can’t I?”
Unfortunately, Grandpa did a lot of things we don’t do anymore. He rode a horse instead of driving a car. He raised his own food and cut his own firewood. Depending on where he lived, he might even have attended lynching parties.
Times change. Often they change for very good reasons. In the case of environmental regulations, those reasons include that we have realized that the “traditional” ways had some thoroughly nasty side-effects, such as destroying wildlife and turning waterways into open sewers. In the 1960s, Cleveland’s Cuyahoga River infamously caught fire. In 1952, smog killed 4000 Londoners. Add in oil spills, acid rain, ozone holes, and global climate change. We have good and sufficient reasons for telling people that they can no longer do things the way Grandpa did.
Note that it isn’t just that Grandpa didn’t know better. There were fewer people around in his day. If he was a rancher, he didn’t graze as many cattle on public land. If he was an industrialist, he didn’t generate as much crap to dump in the river. When America was expanding westward, the focus was on building industries, farms, and towns. If problems arose, there was vacant land waiting to be moved to. But when the expansion was done, problems became more visible and less avoidable. People could see that there were “trade-offs” involved in human activity: more industry meant more jobs and more wealth, but there was a price in air and water pollution and human health (among other things).
Things changed, bit by bit. The numbers crept up. More people, more cattle, more problems. And not just in the U.S.A. Nowhere, perhaps, was the price more obvious than in Eastern Europe. The former Soviet Union was infamous for refusing to admit that industrial activity was anything but desirable. Anyone who spoke up about environmental problems risked jail. The result, which became visible to Western nations after the fall of the Iron Curtain in 1990, was industrial zones where rivers had no fish, children were sickly, and life expectancies were reduced.
By the 1950s and 1960s, Grandpa was looking like an idiot. So were people who said “Grandpa did it. Why can’t I?”
The rest of us knew an “Oops” moment when we saw it. We learned why we should not keep doing things the old way. We passed laws such as the Clean Air and Clean Water Acts to force the idiots to change their ways.
But… Lawyers. They invented the concept of “regulatory takings.” The idea is that since the Constitution prohibits government from seizing property without due process or compensation, and since environmental regulations prevent certain uses of property and/or increase costs, they amount to just such seizures. Conservatives use this view of environmental regulations to justify getting rid of those regulations or—sometimes—putting industry lobbyists in charge of the regulatory process. Property rights are sacred! Tradition is sacred! Grandpa did it right! And, of course, the only value that counts is economic value. Nature undeveloped is mere wasteland. Don’t worry about endangered species. They just can’t cope.
Idiots! Excuse me, but… Idiots!
Change happens. Grandpa made mistakes. We learn—or should learn–from them. We stop doing things the way Grandpa did. We figure out new ways to meet human needs, and—of course!—we make new mistakes. And we learn from them.
Unfortunately, many people want to keep doing things the way Grandpa did. After all, that’s how he got rich and built a country, and so on. They’d rather ignore the mistakes and the need to learn, the need to change.
need to change is not about to go away. There are still environmental problems
we have to deal with. And when you consider that science and technology
continue to evolve, creating new industries, solving some problems, creating
more, and presenting new choices, new opportunities to change. Or not. After
all, in due time we will be Grandpa in our turn.
 See e.g. Courtney Sherwood and Kirk Johnson, “Bundy Brothers Acquitted in Takeover of Oregon Wildlife Refuge,” New York Times (October 27, 2016) (https://www.nytimes.com/2016/10/28/us/bundy-brothers-acquitted-in-takeover-of-oregon-wildlife-refuge.html).
 Okay, Great-grandpa. Maybe even Great-great-grandpa.
 See William A. Fischel, Regulatory Takings: Law, Economics, and Politics (Harvard University Press, 1995).
 To borrow a conservative line about poor people, maybe endangered species just made bad life choices.