Silver Lining or Double-Edged Sword? Equipopulation Exceptions and Environmental Protection
By Michael Grynberg
INTRODUCTION
Legislators represent people, not trees or acres.-Reynolds v. Sims, 377 U.S. 533, 562 (1964).
Structuring the political process is not a neutral endeavor. Pre-election determinations regarding ballot access and aggregation play an outsize role in electoral outcomes. Those who design the electoral system, therefore, have the opportunity to favor or disfavor specific viewpoints long after the task of devising an electoral structure is complete. The tools used to achieve these ends have faced legal fire from both voting rights proponents, those seeking to expand access to the political process, and those disadvantaged by any particular regime. Because certain voting schemes favor certain viewpoints, voting rights interests may clash with other political priorities in any given context.
This Note seeks to examine one aspect of the latent tension between voting rights and environmental concerns: the environmental threat posed by the “proprietary” exception to the “one person/one vote” principle, and the countervailing opportunity to use the exception to create governmental entities that possess an institutional bias in favor of environmental preservation. In the end, the threats posed by the use of the exception may outweigh any potential benefits. Be that as it may, the exception appears here to stay, and those whose views suffer at the hands of a prevailing constitutional regime may yet find opportunity in the status quo.
The Supreme Court established the one person/one vote rule in Reynolds v. Sims. The Court held that the Equal Protection Clause of the Fourteenth Amendment requires states to apportion their legislatures on a basis that gives each citizen's vote equivalent weight. The Court soon expanded the principle to elections of local government units and struck property ownership requirements for various local elections. In establishing these precedents, however, the Court noted that some governing bodies might exercise duties that are non-traditional and affect a specific group in a disproportionate manner. For such districts, an election under the one person/one vote principle may not be necessary.
This hint became explicit in Salyer Land Co. v. Tulare Water Dist. The Court concluded that a California water storage district, because of its limited purpose and disproportionate effect on landowners, could restrict its franchise to property owners within the district and weight votes based on the amount of property owned. This “proprietary” exception to the one person/one vote rule was expanded in Ball v. James. Ball also concerned a water-related special district that enjoyed limited government powers, in this case the ability to condemn land, issue tax-free bonds, and tax real property. Unlike Salyer, however, Ball's water conservation district sent its water to urban as well as agricultural areas and also operated electricity generating facilities to meet the bulk of the district's operating costs by selling power to state consumers. Despite these distinctions, the Court upheld the district's property-based voting scheme, stating that the district did not exercise “normal” government functions and that the district's primary purposes, its water functions, were narrow. Given these precedents, state and lower federal courts have also employed the proprietary model in a variety of cases ranging from water districts to the funding of public transportation systems.
For the environmentally minded, the proprietary exception raises an immediate concern that the wealthy will have too much say in decisions that may adversely affect the environment. Indeed, Salyer arose due to district activities that led to the flooding of one of the plaintiffs' land. Especially troubling is the potential insulation of corporate interests from public accountability when the proprietary exception allows those interests to hold sway in environmentally sensitive areas.
Though the proprietary exception can be criticized on environmental grounds, the line of precedent exists nonetheless. Given the real threat of environmentally hostile institutions, the question is whether the proprietary exception presents potential benefits for those seeking to institutionalize environmental preservation. Three areas suggest themselves.
First, the ability to restrict the franchise to a specific class of voters may present certain practical opportunities in the creation of the special district that are independent of any divergence of interests between the enfranchised and excluded residents of that district. For example, if a water district is needed to preserve an aquifer but agricultural interests in the state legislature will block the body's creation unless the franchise is allocated based on property, an environmentally minded individual may prefer a district on those terms over no district at all. Second, the ability to restrict the franchise may be beneficial to the environment if the vote can be restricted to a class that is more likely to have a greater interest in environmental protection. Electoral tailoring may prove especially useful in situations in which the obstacles to environmental protection predicted by public choice theory appear. Third, the proprietary exception expands the range of possible governmental structures, creating the prospect for innovation in the creation of entities with a structural bias in favor of environmental preservation.
This Note looks to both the practical and theoretical challenges to environmental legislation and regulation as well as past applications of the proprietary exception to evaluate the exception's possibilities. Part II describes and examines the genesis of the proprietary exception in greater detail and discusses its inherent dangers to environmental preservation.
Part III analyzes the flip side of the coin. The exception presents “green” potential in three areas: use in spite of divergent interests between the franchised and disfranchised; use because of the divergence; and use to create the divergence. Section A of Part III disregards the interests of the group enfranchised by the special district to examine cases in which the exception gives environmental interests a bargaining chip with other interests or confers efficiency benefits. Using public choice theory's accounts of environmentalism's difficulties in the political process as a point of departure, Section B examines the exception's potential benefits in cases in which the enfranchised interest is also one that can be expected to have environmental goals closer to heart than the voting population in general. Section--explores the exception's potential flexibility, specifically the possibility of uniting the proprietary exception with certain strains of “free market” environmentalism. Both the command and control approach to environmental protection as well as the notion of preserving the environment through privatization have been attacked for ignoring the benefits of the opposing model. The proprietary exception to the one person/one vote rule offers one possibility for harmonizing these contrary approaches.
Finally, this Note concludes with some thoughts on whether, for environmentalists, the game is worth the candle in light of potential moral costs of the using the exception.
Legislators represent people, not trees or acres.-Reynolds v. Sims, 377 U.S. 533, 562 (1964).
Structuring the political process is not a neutral endeavor. Pre-election determinations regarding ballot access and aggregation play an outsize role in electoral outcomes. Those who design the electoral system, therefore, have the opportunity to favor or disfavor specific viewpoints long after the task of devising an electoral structure is complete. The tools used to achieve these ends have faced legal fire from both voting rights proponents, those seeking to expand access to the political process, and those disadvantaged by any particular regime. Because certain voting schemes favor certain viewpoints, voting rights interests may clash with other political priorities in any given context.
This Note seeks to examine one aspect of the latent tension between voting rights and environmental concerns: the environmental threat posed by the “proprietary” exception to the “one person/one vote” principle, and the countervailing opportunity to use the exception to create governmental entities that possess an institutional bias in favor of environmental preservation. In the end, the threats posed by the use of the exception may outweigh any potential benefits. Be that as it may, the exception appears here to stay, and those whose views suffer at the hands of a prevailing constitutional regime may yet find opportunity in the status quo.
The Supreme Court established the one person/one vote rule in Reynolds v. Sims. The Court held that the Equal Protection Clause of the Fourteenth Amendment requires states to apportion their legislatures on a basis that gives each citizen's vote equivalent weight. The Court soon expanded the principle to elections of local government units and struck property ownership requirements for various local elections. In establishing these precedents, however, the Court noted that some governing bodies might exercise duties that are non-traditional and affect a specific group in a disproportionate manner. For such districts, an election under the one person/one vote principle may not be necessary.
This hint became explicit in Salyer Land Co. v. Tulare Water Dist. The Court concluded that a California water storage district, because of its limited purpose and disproportionate effect on landowners, could restrict its franchise to property owners within the district and weight votes based on the amount of property owned. This “proprietary” exception to the one person/one vote rule was expanded in Ball v. James. Ball also concerned a water-related special district that enjoyed limited government powers, in this case the ability to condemn land, issue tax-free bonds, and tax real property. Unlike Salyer, however, Ball's water conservation district sent its water to urban as well as agricultural areas and also operated electricity generating facilities to meet the bulk of the district's operating costs by selling power to state consumers. Despite these distinctions, the Court upheld the district's property-based voting scheme, stating that the district did not exercise “normal” government functions and that the district's primary purposes, its water functions, were narrow. Given these precedents, state and lower federal courts have also employed the proprietary model in a variety of cases ranging from water districts to the funding of public transportation systems.
For the environmentally minded, the proprietary exception raises an immediate concern that the wealthy will have too much say in decisions that may adversely affect the environment. Indeed, Salyer arose due to district activities that led to the flooding of one of the plaintiffs' land. Especially troubling is the potential insulation of corporate interests from public accountability when the proprietary exception allows those interests to hold sway in environmentally sensitive areas.
Though the proprietary exception can be criticized on environmental grounds, the line of precedent exists nonetheless. Given the real threat of environmentally hostile institutions, the question is whether the proprietary exception presents potential benefits for those seeking to institutionalize environmental preservation. Three areas suggest themselves.
First, the ability to restrict the franchise to a specific class of voters may present certain practical opportunities in the creation of the special district that are independent of any divergence of interests between the enfranchised and excluded residents of that district. For example, if a water district is needed to preserve an aquifer but agricultural interests in the state legislature will block the body's creation unless the franchise is allocated based on property, an environmentally minded individual may prefer a district on those terms over no district at all. Second, the ability to restrict the franchise may be beneficial to the environment if the vote can be restricted to a class that is more likely to have a greater interest in environmental protection. Electoral tailoring may prove especially useful in situations in which the obstacles to environmental protection predicted by public choice theory appear. Third, the proprietary exception expands the range of possible governmental structures, creating the prospect for innovation in the creation of entities with a structural bias in favor of environmental preservation.
This Note looks to both the practical and theoretical challenges to environmental legislation and regulation as well as past applications of the proprietary exception to evaluate the exception's possibilities. Part II describes and examines the genesis of the proprietary exception in greater detail and discusses its inherent dangers to environmental preservation.
Part III analyzes the flip side of the coin. The exception presents “green” potential in three areas: use in spite of divergent interests between the franchised and disfranchised; use because of the divergence; and use to create the divergence. Section A of Part III disregards the interests of the group enfranchised by the special district to examine cases in which the exception gives environmental interests a bargaining chip with other interests or confers efficiency benefits. Using public choice theory's accounts of environmentalism's difficulties in the political process as a point of departure, Section B examines the exception's potential benefits in cases in which the enfranchised interest is also one that can be expected to have environmental goals closer to heart than the voting population in general. Section--explores the exception's potential flexibility, specifically the possibility of uniting the proprietary exception with certain strains of “free market” environmentalism. Both the command and control approach to environmental protection as well as the notion of preserving the environment through privatization have been attacked for ignoring the benefits of the opposing model. The proprietary exception to the one person/one vote rule offers one possibility for harmonizing these contrary approaches.
Finally, this Note concludes with some thoughts on whether, for environmentalists, the game is worth the candle in light of potential moral costs of the using the exception.
