State Private Property Rights Acts: The Potential for Implicating Federal Environmental Programs

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State Private Property Rights Acts: The Potential for Implicating Federal Environmental Programs^

Introduction

In recent years, numerous states have passed Private Property Rights Acts (PPRAs). PPRAs attempt to provide a safeguard against private property restrictions and land devaluation resulting from certain government agency environmental and land use regulations. Although drafted to regulate state agency actions, PPRAs have the potential to implicate federal programs because federal statutes often delegate portions of environmental programs to the states to administer. An example of this type of delegation is the permitting program of the Clean Water Act. The United States Environmental Protection Agency (EPA) has expressed concern over the possibility that Texas's PPRA could hinder the state's administration of certain delegated environmental programs. This concern may not remain focused on Texas alone: other states' PPRAs also hold the potential to threaten the administration of federally delegated environmental programs. This Note compares the language of three states' PPRAs: Montana, Utah, and Texas, and examines whether they can restrict federally delegated environmental programs as the EPA fears. A selection of only three states allows for a useful comparison of representative PPRA language. It also facilitates a detailed examination of the language of the acts-an examination that would be unmanageable if this Note attempted to address the language and implications of all state PPRAs.

The PPRAs of these three states are noteworthy for four reasons. First, these three acts represent the typical language variations found among PPRAs.1 Second, all three PPRAs specifically list "permitting" as a government action that could constitute a taking of private property, thereby potentially implicating federally delegated permitting programs.2 Third, the differences in language and structure among the three PPRAs may affect their interpretation concerning federally delegated environmental programs. Finally, of the numerous PPRAs introduced among the states, the PPRAs of Utah, Montana, and Texas all passed through their respective legislatures and continue to exist whereas a few other states have repealed their PPRAs.3

Part I of this Note introduces the problem and provides a brief history of state PPRAs. Part II compares the relevant language of the PPRAs of Montana, Utah, and Texas. Part III examines reasons why, in light of the language of the PPRAs, the EPA may be justified in its concerns over a state's ability to administer delegated permitting programs in the face of the PPRAs. Part IV suggests a way to remedy the effect PPRAs may have on federally delegated programs. Finally, Part V concludes by considering the implications of the EPA's current stance toward PPRAs and the status of state PPRAs in the future.

The Problem

In the past few years, many states have passed Private Property Rights Acts ( PPRAs) to ensure that state regulations will not result in a "taking" of private property. Central to all PPRAs is the provision that states conduct a "takings impact assessment"4 (TIA) prior to promulgating regulations. Such assessments require that agencies conduct an extensive review of any regulation that they propose. In conducting this review, agencies must analyze the burdens that the regulation may impose on a private property owner, examine less burdensome alternatives, and try to ensure that the regulation does not result in a "taking. "5 A state agency's failure to conduct an assessment may render the regulation void and provide a cause of action to an affected property owner.6 A few of the state PPRAs also specifically provide for compensation to landowners if a state action results in a "taking."7

PPRAs are the product of efforts by various property rights groups referred to collectively as the "Wise Use Movement. "8 The Movement is comprised of landowners (including farmers, ranchers, miners, and loggers), labor unions, industry groups, trade associations, developers, and even local government officials who became concerned over the increase in federal and state regulation of private lands spurred by 1970s environmental legislation. …