Takings Policy: Property Rights and Wrongs

By Echeverria, John; Dennis, Sharon | Issues in Science and Technology, Fall 1993 | Go to article overview

Takings Policy: Property Rights and Wrongs


Echeverria, John, Dennis, Sharon, Issues in Science and Technology


Since the early 1970s, local, state, and federal governments across the United States have enacted a host of environmental protection laws. On the federal level alone, such laws include the Clean Air and Clean Water acts, the Endangered Species Act, and the Toxic Substances Control Act. Most Americans tends to take for granted the many regulations that have improved not only the quality of air and water but their quality of life as well. If they think about it at all, they may feel inconvenienced by regulations tht affect them personally, such as mandatory curbside recycling and automobile emissions testing.

On the other hand, the growth of regulation is felt keenly in some quarters. This includes manufacturers saddled with costly pollution-control measures, developers limited by zoning control and environmental laws, and ranchers forced to modify their use of public grazing lands. Together, these and other disparate interests have formed the "property rights movement," dedicated to rolling back health, safety, and environmental regulations that limit their activities and squeeze their pocketbooks.

One of this movement's weapons is the Fifth Amendment to the U.S. Constitution, which provides that private property [shall not] be taken for public use without just compensation. The 'takings" clause applies to certain regulatory actions that impose severe economic burdens on businesses or property owners as well as to the government's outright appropriation of private property. Anyone who believes that the government has violated his or her property rights can go to court and seek "just compensation."

Once an obscure area of constitutional law, regulatory takings has become a topic of keen interest and debate in the courts and among legal commentators. And when the Supreme Court accepted a trio of takings cases for review in 1992, proponents looked to add new protections for private property rights against government intrusion.

The court quickly dismissed one case, and it rejected a second one on narrow grounds unrelated to the regulatory-takings issue. In Lucas v. South Carolina Coastal Council, the South Carolina Supreme Court had rejected a beachfront property owner's challenge to restrictions prohibiting residential construction or any other substantial development along the shore. The U.S. Supreme Court reversed this decision, holding that when regulation makes property valueless, there is a strong presumption that compensation will be due.

The outcome of the debate over property rights is likely to shape the character of federal and state regulations for decades to come. It is also shaping our understanding of a citizen's rights and responsibilities in an increasingly complex and crowded society.

The terms of the debate

The protection against takings, like other guarantees in the Bill of Rights, is designed to prevent the government from unfairly singling out an individual to bear a burden the public as a whole should share. If the public nees a road, the Fifth Amendment says, the majority cannot serve the general good by simply seizing someone's land. By analogy, say the staunchest advocates of property rights, if the public wants to protect endangered species, preserve wetlands, maintain an historic district, or achieve a variety of other conservation objectives, individual property owners should not have to bear the burden alone.

Although the property-rights argument has undeniable force, there also are obvious limits on such rights. As Justice Oliver Wendell Holmes observed in the case of Pennsylvania Coal v. Mahon, government "could hardly go on" if it had to pay compensation every time it diminished property values. Especially today, governmental action is so pervasive, and its effects on property values so common, that it would be virtually impossible to keep track of, let alone compensate, every economic harm. Moreover, regulations can actually serve to protect and enhance property rights in many instances. …

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