The Endangered Species Act and Fifth Amendment Takings: Constitutional Limits of Species Protection
Greene, Blaine I., Yale Journal on Regulation
Blaine I. Green^
In a political climate increasingly sensitive to the property owners' rights to be free from regulatory intrusions by the federal government, the Endangered Species Act (ESA) has become a popular symbolic target for property rights advocates. This Article suggests that the ESA is a far less significant threat to private property owners than is often supposed. First, the Supreme Court's takings jurisprudence protects property owners from excessive ESA enforcement by influencing the way in which environmental regulations are drafted and implemented. Second, the ESA itself contains provisions embodying the Fifth Amendment guarantee against uncompensated takings. The Article demonstrates that as the Court has become more willing to find regulatory takings in recent years, the ESA has been administered with increasing regard to the protection of private property.
Hailed by some as the most successful environmental law in the last quarter century,1 reviled by others as an unjustified intrusion on private property rights,2 the Endangered Species Act of 1973 (ESA or the Act)3 is nothing if not controversial. The rhetoric over the ESA has been particularly vitriolic in recent years as the Act has come to epitomize, for some,4 the excesses of the federal regulatory state. Accordingly, current debate over the ESA is as much about the role of government in general, and the federal government in particular, as it is about the need to protect endangered species. The Republican party's takeover of Congress in 1994 and its inclusion of the Private Property Protection Act in its Contract with America further polarized discussion of the ESA, shifting focus from species preservation to private property protection. Though attempts to make compensable any significant reduction in property value occasioned by the ESA (or other federal regulation) were ultimately unsuccessful in the 104th Congress,5 similar efforts are being considered in the lO5th Congress.6
The ESA is an important symbolic target for the property rights movement and for opponents of big government because it dramatizes the impact of federal regulations on individuals, providing anecdotes of property owners whose livelihood is, one way or another, threatened by the government's mandate to save some little-known bird, bug or rodent. In Texas, for example, 74-year old Margaret Rector lost the chance to build her retirement home because use of her property would harm the endangered golden-cheeked warbler.' For property rights advocates, this is a clear case of compensable "takings" under the Fifth Amendment, which provides, in pertinent part, that "private property [shall not] be taken for public use, without just compensation."8
The difficulty for the property rights movement, however, is that while there are many examples of landowners harmed by the ESA, no court has recognized a Fifth Amendment taking as a result of an ESA regulation? Property rights advocates, therefore, simultaneously advance alternative positions. On the one hand, they argue that ESA regulations constitute constitutional takings when private property is affected. On the other hand, because the courts have not recognized takings claims based on ESA regulations, the property rights movement advocates legislation which would expressly declare any reduction in property value as compensable. In this Article I develop the first of the alternative positions. I will argue that the Supreme Court's takings jurisprudence, by serving as the backdrop against which environmental regulation is made, does in fact protect landowners from the ESA. I will demonstrate that the ESA itself contains provisions-the newly popular section 10 habitat conservation planning (HCP) process, in particular10-which are the practical embodiments of the Fifth Amendment guarantees. I will show that as the Court has become more willing to find regulatory takings in recent years, so the ESA has been administered with increasing sensitivity to its effects on private property. …