Environmentalists feel like they have been sucker-punched with the overwhelming passage of Measure 37 in Oregon.

Measure 37 was an initiative sponsored by some large timber companies and property-rights advocacy groups that requires state and local governments to compensate property owners when land use and other regulations reduce the value of property by limiting its use. Alternatively, governments can rescind regulations. Because of the way the measure is written, the potential damage to environmental and land use protections that  the public otherwise values is great. Polling shows that voters did not know or did not believe the full reach of the measure, which has given rise within the environmental community to debate over what to do. (Here are some links to arguments pro and con.)

The face of the measure presented to voters was an elderly lady denied use of her property or compensation when land use and other regulations reduced its value or limited its use. To environmentalists, the sinister soul of the measure was an ambush of Oregon’s much-valued land use planning system.

How did it happen? Was it nothing more than a clever sneak attack by the property-rights movement and developers that fooled voters by presenting a falsely benign face? Did voters really know what they were voting on? Surely they didn’t understand the consequences for land use and protection of the environment in Oregon.

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  • If so, we will be tempted to conclude, the correct response is to undo the damage any way possible. Get the courts to overturn the election (it worked the first time, with Measure 7 in 2000). Get the Governor and friendly legislators to hack and trim and hedge the measure (it is not a Constitutional Amendment so it is open to legislative amendment or even repeal). After all, one good sneak attack deserves another.

    Tempting. But wrong. Wrong politically. Wrong ethically. Wrong for the policy direction to which it constrains us.

    Taking a few steps back, Measure 37 is the latest “teacher” of these lessons:

            For all the support the environmental community has built up over the years, it digs itself into a hole when it fails to recognize the spread of both apparent and real grievances with our land use and environmental legal apparatus

            No matter how good our laws and regulations, they are weak reeds without a nurturing and supporting public

            Our reliance on law and regulation has limits that behoove us to explore other pathways, including better use of the market and incentives (broadly taken)

    These lessons are at the heart of two immediate junctures for the environmental community in Oregon (and maybe one in Washington). First, how will the environmental community respond to passage of Measure 37? Secondly, will Metro pursue habitat protection in the Portland urban area through a strict or much-looser regulatory regime?

    Fortunately, we have guidance on both from two of the wisest and most committed stewards of the environment and community I know of.

    Congressman Earl Blumenauer is preaching that the correct response to Measure 37 is not to overturn it with some legal or legislative maneuvering, because all the public will do is tell us even more emphatically, “damn it, we meant it.” While it is true that the public did not know the full potential consequence of the measure, they did emphatically mean what they said about the principle of compensation. And voters had experienced enough ham-handed government regulation to be sympathetic.

    But, Congressman Blumenauer rightly points out, those who sponsored and supported the measure should bear some responsibility for its consequences. Typically, one of the great things about sponsoring an initiative is that you get to escape responsibility. So, he argues, put the sponsors on the hot seat for coming up with a plan to implement the measure that does what voters do want: provide relief for property owners with legitimate beefs, preserve fairness and certainty in local zoning and permitting, preserve the benefits of Oregon’s land use system-and find a way for governments to pay when necessary without gutting the rest of government.

    There are risks with this, of course. But it does one important thing: it treats the decision of voters as legitimate, if imperfect. And, just as importantly, it begins to put pressure on the more responsible of those on the other side.

    At the same time, it is important to continue to give the public an honest look at what is at stake and the consequences of Measure 37 as they unfold. I stress honest. The public is wary, even disbelieving, of claims that the sky is falling. We have to get out of the mold of focus-testing the cleverest slogan as a means of conversing with the public.

    That’s the ethical part. It is also, in the long run, smart politics.

    David Bragdon, Portland Metro Council President, is the other leader who is giving us smart environmental politics. Politics with an eye on the larger, longer-lasting consequences of decisions for both community and the environment.

    As David faced the prospect this year that Metro might declare fully one-third of the Metro region as wildlife habitat subject to a full panoply of regulation at the regional level, he awoke to the realization that this was short-sighted and would undoubtedly be short-live
    d. And would undermine the c
    apital Metro has built up.

    So, he has proposed a much softer, more flexible approach that focuses more on the largest threats (much less on individual residential property owners) and relies more on local rather than regional implementation and enforcement, This has engendered a strong, to put it mildly, response from some in the environmental community who believe they have been betrayed.

    In fact, David read the lessons of Measure 37 before the votes were cast. To his credit it wasn’t just about avoiding a public backlash, it was equally about finding alternative pathways that build toward a more enduring reconciliation of environment, economy and community.

    Which is the third main lesson we must heed. Looking forward and realizing that many environmental issues reach to our individual behavior, we should also admit how clumsy and self-limiting regulatory approaches can be in these circumstances. We need to be happy warriors exploring alternative means to the same ends. (Sightline has a number of ideas along these lines to offer.)

    Now, none of this is to argue that regulation is not critical to sustainability nor that Measure 37 will not have grave consequences. It does argue that a narrowly defensive posture is unbecoming and unproductive.