Regulatory Takings and the Environment: The Impact of Property Rights Litigation

Regulatory Takings and the Environment: The Impact of Property Rights Litigation

Regulatory Takings and the Environment: The Impact of Property Rights Litigation

Regulatory Takings and the Environment: The Impact of Property Rights Litigation

Synopsis

Botello-Samson reconceptualizes the relationship between regulatory agencies and regulatory takings litigation. By analyzing the impact of such litigation on the implementation of two federal environmental statutes, the Surface Mining Control and Reclamation Act and the Endangered Species Act, the author uncovers institutionalized characteristics of these regulatory regimes which insulate policy decision-making from the forces of a chilling effect. While these characteristics do not prevent a chilling effect, they do direct an understanding of regulatory takings litigation away from a total focus on economic costs and toward a focus on the hermeneutic and relational contexts that shape expectations of property use in a legally pluralistic environment.

Excerpt

The courtroom dramas of television and film have acquainted numerous Americans with the content of the Fifth Amendment. Beyond the individual protections from self-incrimination and double jeopardy, however, the Fifth Amendment contains a provision seldom, if ever, the subject of entertaining portrayals of courtroom procedures. the last line of this amendment, the Takings Clause, states, “nor shall private property be taken for public use, without just compensation.” When the Takings Clause rises to occupy a position within the collective public consciousness, it is generally through a controversy arising from the government’s use of its power of eminent domain.

In 2005, the U.S. Supreme Court’s decision in Kelo v. City of New London accomplished this feat and, in the process, produced a shortlived yet highly vitriolic backlash to the power of eminent domain.

As expected, property rights groups and Libertarian
organizations excoriated the majority opinion and celebrated
the dissents. More interesting is the reaction of the rest of the
population. Americans of most political persuasions, and
education and income levels found the outcome
counterintuitive at best, or more often, simply repulsive.

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.