- Texans tangle over municipal ordinances requiring preservation of trees on private land [Mindy Fetterman, Huffington Post]
- WOTUS, SCOTUS, and POTUS: “The Supreme Court wrestles again with the Clean Water Act’s due process deficit” [Jonathan Wood, earlier]
- Florida turned land into bird sanctuary without owners’ consent. As compensation it gave them “points.” Takings review needed [Ilya Shapiro and Meggan DeWitt, Cato on Ganson v. City of Marathon and Trevor Burrus’s first official brief] Alas, SCOTUS has denied certiorari on two other property rights cases, 616 Croft Ave. v. City of West Hollywood and Wayside Church v. Van Buren County;
- “How Suburban Parking Requirements Hold Back Downtown” [Nolan Gray, Market Urbanism]
- “Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?” [Andrew R. Varcoe, WLF]
- Short Circuit: “Does Texas’ delegation of its eminent domain power to private pipeline companies violate the Due Process Clause? Probably not, according to this Fifth Circuit panel.” [John Ross, Short Circuit, on Boerschig v. Trans-Pecos Pipeline]
Filed under: climate change, eminent domain, land use and zoning, Supreme Court, Texas, trees
9 Comments
I predict the natural outcome to the tree regulations will be the equivalent to “shoot, shovel and shut up” and / or what land owners do when their property is ALMOST to the point of becoming endangered species habitat (e.g. log it or otherwise spoil the habitat).
In the case of urban trees, expect individuals to respond in one of a few predictable manners:
1) “Vandals” will kill the protected tree by making a complete circumferential cut through the cambium layer. At that point the tree is dead and a hazard, hence removal will be authorized. Herbicide will be applied in the cut for extra leathality. Hand pruning saws are quite effective and for all practical purposes, silent.
2) Existing small trees will be cut before coming under the jurisdiction of the ordinances.
3) Trees that may have been planted willingly will not be planted in the first place to avoid the hassles of the ordinance. Alternatively only dwarf or other species that will never grow to regulation size will be planted.
Statists, when will you get it through your neutron star dense heads that you don’t own private property? When will you realize that people don’t like it when you try and steal from them? When will you realize that in your zeal to accomplish your objective, that your heavy handed tactics, like these tree ordinances, will actually result in LESS of the desired outcome?
Less sticks, more carrots, or better still, since you steal the carrots from the productive class to hand out, how about simply encouragement and social pressure?
Equally predictable is that once the above occurs as the logical response to the heavy handed regulations, is that instead of rethinking the overbearing regulation, the statists will respond in an ever increasing authoritarian manner.
(1) Even though it was “actual” vandals killing the tree, there will be a presumptive liability on the part of the land owner, who will be penalized multi thousands of dollars no matter the cause of death of a protected tree – a lightning strike on a protected tree will be no excuse, for example, or Dutch Elm disease, root rot, or any of a myriad natural causes.
(2) Will result in an ever diminishing threshold for the tree ordinances, so that even saplings will come under the law.
(3) Will result in mandatory planting requirements of specified trees.
“Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?”
Can the Constitution provide a substantive due-process right to a physical impossibility?
Phrased like that, it’s hard to disagree. It’s not even really unenumerated (the Fifth Amendment includes “nor be deprived of life, liberty, or property, without due process of law”.) But obviously the current climate system is capable of sustaining human life – exhibit A is that we aren’t all dead. And even if there is such a right, that doesn’t necessarily mean you get to sue the government for *not* passing a law.
Even under the IPCCs worst case scenario, the earth would still have a climate system capable of sustaining human life.
In point of fact, I rather doubt we could alter the climate to the point where it could not sustain human life, even if we tried.
@No Name Guy, you missed one –
My trees (of all sorts) are dying due to protracted drought. Here in TX. My community does not supply enough water via the service to my home to adequately water all the trees on my 1 acre property to prevent their deaths during the twice weekly allowable watering periods.
Accordingly, I’ve let them die.
So, am I to be guilty of violating the water conservation ordinances, guilty of violating the tree preservation ordinances, or both? I’ll tell you which one is cheaper – let it all die and be replaced with whatever weed can take root in the clay laden soil. I’ll save my water for a couple 4×8 raised beds.
“Does the Constitution Provide a Substantive Due-Process Right to a Stable Climate System?”
Headline circa 66m years ago, Dino Times.
During the CA drought a few years ago, in some cities you could be fined for watering due to the drought but also fined if you let your lawn die.
To the statists, your tree belongs to everyone when it is pretty, but belongs to you when it falls on your house and kills you.
If those “points” are worth so much, the state should just sell them itself. Either the sale would give the state plenty of money to compensate the landowners… or the points are inadequate compensation.
Guess the city/county/state should drive around a water wagon when they need watering and a professional arborist to insure that the tree has proper nutrition, pruning, etc so that it poses no burden on the land owner. They can pay the land owner an access tax any time any of this care is required…