Home > Journals > St. John's Law Review > Vol. 99 > No. 3
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Abstract
(Excerpt)
Congress and state legislatures have been slow to address growing cries for increased environmental protections. Climate change and the attendant sea-level rise, wetland protections, cleanup of hazardous substances, and protections for species listed under the Endangered Species Act often require extensive regulation of private lands to be effective. The political will to implement environmentally conscious regulations varies with election cycles and social mores, but there is a legal—constitutional—impediment that overrides these political winds. The Fifth Amendment’s Takings Clause frequently creates an insurmountable budgetary obstacle to broad land use restrictions that may otherwise be implemented to protect the environment.
Government agencies could not possibly buy—at fair market value—every piece of property that was subject to sweeping environmental restrictions. Although property purchases frequently happen, costs and budgets limit the scope of land that can be purchased in the name of environmental protection. State and local agencies therefore enact regulations that limit the impact to a level that will avoid successful takings claims.
Part of the problem is the fact that the Takings Clause—and its application—fails to adequately consider environmental concerns. The environment may be a peripheral consideration under broad and nebulous balancing tests whose factors weigh “the character of the governmental action” and interference with reasonable “investment-backed expectations” in determining if a regulation goes too far such that compensation is due. The recently enacted test for determining the parameters of the relevant parcel that is subject to a takings claim awkwardly includes environmental considerations, but courts have been at a loss in applying it.
The common law test(s) for determining whether a regulation constitutes a Fifth Amendment taking—or inverse condemnation— is broken. The test(s) should be streamlined and tailored to accommodate modern environmental concerns. Simplifying the tests will promote greater certainty for State and Local authorities to predict when a sweeping environmental regulation will trigger a successful inverse condemnation claim, and private property owners will be better able to gauge when compensation is due so that they do not chase claims that are notoriously difficult to win. Finally, environmental concerns should be expressly and clearly considered under a streamlined test. As a practical matter, those concerns already exist in the periphery of the rules, and in sub-considerations of the takings analysis—when the environment should be a primary and express concern at least equal to economic considerations