regulatory takings

Holmes, Brandeis, and the ‘Great Ponds’ Debate

Some issues are perennial, like property rights v. public rights in water.

I suppose most of you, like me, have never heard of the Watuppa Ponds.  But in 1888, a battle broke out over the legality of their use to supply drinking water for a nearby city.  The issue closely divided Massachusetts’s highest court, and led to a heated debate in the recently launched  Harvard Law Review …

CONTINUE READING

The Pro-Environmental Lochner Court

How a conservative Court defended environmental protection a century ago.

Like today’s Court, the Supreme Court a century ago was dominated by conservatives. The Lochner era, from around 1900 to 1935, was named after the most notorious case of that period. The Lochner case, which struck down a maximum hours law for workers, epitomized the conservative Supreme Court of that era.  Yet that conservative Court …

CONTINUE READING

Supreme Court Takes a Knick Out of Regulatory Takings Law

Justices Curb Ripeness Rule; Open Federal Courts to Takings Litigation

  In the final, major environmental law decision of its current Term, the U.S. Supreme Court handed property rights advocates a major victory while repudiating an important regulatory takings precedent the Court had itself fashioned and announced 34 years ago. The case is Knick v. Township of Scott.  By a narrow 5-4 vote that split …

CONTINUE READING

A Major Defeat for Property Rights Advocates

Hardly anyone noticed a decision last June limiting the rights of property owners against regulators.

Murr v. Wisconsin was a sleeper case decided by the Supreme Court last June. But it deserves a lot more attention than it has gotten. As I discuss in a new paper, Murr was a major defeat for property rights advocates and a big win for land use planners and environmentalists. Murr has escaped much …

CONTINUE READING

Breaking News: Coastal Commission Prevails in Major California Supreme Court Case

Justices Reject Property Owners’ “Regulatory Takings” Challenge to Seawall Permit Condition

The California Supreme Court today issued its long-awaited decision in Lynch v. California Coastal Commission, rejecting a lawsuit brought by San Diego beachfront homeowners claiming that permit conditions imposed by the Coastal Commission triggered a compensable taking of their private property rights.  Writing for a unanimous Court, Justice Carol Corrigan concluded that the homeowners had forfeited …

CONTINUE READING

President Trump’s Supreme Court Nominee & Murr-murs of Behind-the-Scenes Supreme Court Intrigue

Will Trump’s Supreme Court Pick Prompt Long-Awaited Decision in Key Property Rights Case?

In his wide-ranging, long-awaited and (to put it mildly) colorful press conference last week, President Trump promised to announce his nominee to the U.S. Supreme Court within two weeks of taking the oath of office.  On this pledge, at least, I believe him.  Indeed, I’ll be surprised if he waits that long. Senate Republicans refused to …

CONTINUE READING

What Does a Trump Presidency Portend for California’s Environmental Policies?

Constitutional Issues Loom Large in Future, Likely Federal-California Legal Confrontations

Sensing political storm clouds ahead, California Governor Jerry Brown yesterday issued a statement on the presidential election results that concludes: “We will protect the precious rights of our people and continue to confront the existential threat of our time–devastating climate change.” Several of my Legal Planet colleagues have recently posted thoughtful commentary on what Donald Trump’s …

CONTINUE READING

Upcoming Regulatory Takings Conference 2016

Nation’s Top Annual Takings Event Set for November 4th in New Orleans

One of the most important issues in modern environmental law and policy is the extent to which constitutionally-protected property rights limit environmental regulatory programs at the federal, state and local levels.  Indeed, the U.S. Supreme Court has focused more attention on this question over the last four decades than any other aspect of modern environmental …

CONTINUE READING

Whither the 2016-17 Court on Environmental Cases?

Docket so far limited to a significant takings case, Murr v. Wisconsin

So far, the docket for the U.S. Supreme Court’s term beginning in October includes no significant statutory environmental case.  It does include an important takings case that could limit or expand the land use powers of all levels of  government to protect wetlands, endangered species habitat, and other ecologically sensitive parcels.  Whether the Court ultimately …

CONTINUE READING

San Jose’s Inclusionary Housing Ordinance Dodges Supreme Court Bullet

Justices Deny Review of California Supreme Court Decision Upholding San Jose Measure

Advocates of the City of San Jose’s controversial inclusionary housing ordinance, which was upheld in a 2015 California Supreme Court decision, are breathing a sigh of relief this week.  That’s because the U.S. Supreme Court has denied the California Building Industry Association’s petition for certiorari in the case.  But the available evidence suggests that the High Court …

CONTINUE READING

TRENDING