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4. HOW

This case study really gets at the heart of the sometimes contradictory nature of traditional environmentalists such as those who support the Partnership and its efforts to beautify and conserve the wide open spaces and sprawling growth patterns and those who traditionally support environmental justices causes.  In this case the environmental justice option is one of urban development and low-income housing, which may not be aesthetically pleasing nor conducive to tourism.  The debate is very complicated and certainly throws definitions of 'environmentalists' as a whole out the window. 

It seems as though this type of alleged property rights infringement on top of an EJ claim would have grounds in federal court. However, in Kelo vs. New London, a 2005 Supreme Court case which directly limited personal property rights in the face of the Federal Government. Because Kelo deals with regulatory takings, perhaps the court would be more sympathetic to the JTHG NHA issue which certainly presents the issue of property rights and the legitimacy of the role of the Federal Government in perhaps limiting these rights.  Kelo doesn't necessarily mean the courts would reject a property rights claim, but it certainly puts a damper on the outcome on such a claim within the courts.  Thus litigation seems to be one form of BATNA for the objectors. However it seems a court case could be slow, costly, and risky, even though the activists claim this is a real threat to our property rights and thus the Constitution.   Perhaps an alternative to litigation is required in the time before the legislation is implemented as it was just passed on April 10th. A BATNA could be trying to politicize the debate as a threat to property rights and a regressive burden on already burdened minorities by going to congressional members and expressing grievances. This would certainly attract attention even though the resolution has already been approved in Congress. The media has yet to widely publicize the debate as the opposition has had little to say, but this could be a very effective BATNA. However the objectors would need to have a plan or suggestion as to how to preserve these very important historical places as it is hard for people to object to protecting our national heritage. 

Perhaps if the objectors believed the said property rights were protected in the bill, and that the funding would go directly to preservation and protection of the sites, than this problem wouldn't exist.  However the JTHG advocates do believe there are property rights protections included in the legislation. Therefore a good BATNA for the proponents would be to include some of the opposition in the decision-making by perhaps putting a member of Project 21 or the Heritage Foundation on the Board of Directors of the JTHG Partnership, which is comprised of no groups who have traditionally supported environmental justice or minority causes.  Alternatively, the defendants of the JTHG certainly have shown that they have enough political and financial resources to make this thing go through, and to win a court case should one arise.  The JTHG advocates could use their political power (as they are wealthy land owners and groups that have organized their cause) as a BATNA to convince people in the area by stressing the potential benefits that increased tourism due to the NHA would bring.  Another tactic for the JTHG partnership would be to give compensation or incentives to those who object in order to balance out the burdens that may be incurred by certain groups. 

Perhaps communities who will be adversely affected by the heritage area should hold public hearings to expose the consequences of this legislation and perhaps propose alternate methods in preserving these important sites. As of yet, there is little opposition from groups and persons who might normally support environmental justice causes because media attention to the subject has been slim and the opposition has failed to organize.  Most of the opposition has come from conservative property rights defenders who shame the intrusion of the Federal Government in this seemingly local matter.  This case study is certainly a testimony to disparities in political and economic power and the result of such disparities on the actions of Congress and local groups.  Those with political and economic power are able to organize more efficiently (consider the social, political, and economic capital of the Partnership and the result of such wealth) and those with less have more trouble. 

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