Property Rights Debate Cools, but Does Not End

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In "Takings Policy: Property Rights and Wrongs" (Issues, Fall 1993), Sharon Dennis and I argued that the rise of the "takings" or "property rights" agenda represented a significant threat to the public's ability to adopt and enforce environmental laws.

The takings issue derives its inspiration from the Fifth Amendment to the U.S. Constitution, which provides that "private property [shall not] be taken for public use, without just compensation." Originally intended to apply only to outright appropriations of property, such as for the construction of roads or public buildings, the amendment has been interpreted by the Supreme Court to also apply to regulations that are the functional equivalent of appropriations. Takings advocates contend that the legislatures or the courts should expand on the protection provided by the Fifth Amendment. This could ultimately undermine regulatory authority if the government had to pay property owners each time it acted to protect the environment.

Since 1993, dozens of state legislatures have debated takings legislation. About 20 states have adopted measures, most of them largely symbolic, requiring state agencies to assess the potential effects of their actions on property rights. Florida, Louisiana, Mississippi, and Texas have enacted laws mandating public payment for certain regulations over and above the constitutional "Just compensation" standard; although the Florida law in particular has had a significant chilling effect on local land use regulation, the effects in the other states are either more modest or uncertain.

In 1994, a takings measure adopted by the Arizona legislature was rejected by the voters at the ballot box by a margin of 60 to 40, and Washington voters rejected a similar measure by the same margin in 1996, resulting in a significant cooling of political interest in the takings issue at the state level. (On the other hand, a takings measure has been placed on the November 2000 ballot in Oregon.)

In Congress, expansive takings legislation was a centerpiece of the "Contract with America" promoted by the Republican-controlled House of Representatives in the 104th Congress. The bill passed the House but died in the Senate. …