Takings Clause
Temporary Takings and the Adaptation Dilemma
Current law penalizes adaptation measures because of the risk of takings liability.
Is it unconstitutional for the government to build a levee that reduces the risk of urban flooding but diverts the water to nearby farmlands? The answer could be yes, unless the government pays for flood easements on the rural lands. But if the government doesn’t build the levee, it faces no liability from the urban …
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CONTINUE READINGU.S. Supreme Court Revisits, Tightens Regulatory Takings Limits on Land Use Regulation
California Homeowner’s Takings Challenge to County’s Traffic Impact Fee Heads Back to State Court
On April 12th, the U.S. Supreme Court revisited a constitutional doctrine near and dear to its institutional heart: when and under what circumstances does a land use permit condition violate the Fifth Amendment’s Takings Clause? In yet another “regulatory takings” case from California, the Supreme Court wound up not answering that precise question. Instead, the …
CONTINUE READINGThe U.S. Supreme Court & Environmental Law in 2024
Numerous Key Environmental Issues and Doctrines Will Confront the Justices This Year
As we begin 2024, it’s useful to identify and assess the many environmental issues that the U.S. Supreme Court has agreed to decide this year. It seems likely that the conservative majority of the justices will erode or, perhaps, dramatically jettison longstanding principles of environmental law and policy in the coming months. Summarized below are …
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CONTINUE READINGA(nother) California “Regulatory Takings” Case Heads to the Supreme Court
Newly-accepted case pits private property rights against government land use authority
The U.S. Supreme Court has agreed to hear and decide an important “regulatory takings” case from California that has major implications for federal, state and local governments nationwide. The case is Sheetz v. County of El Dorado, Docket No. 22-1074. Even before the justices granted review in the Sheetz case last Friday, the Court’s 2023-24 …
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CONTINUE READINGUnprecedented Legal Questions
The climate crisis is unprecedented. So is its legal fallout.
In teaching my class on Climate Law, I’ve been struck by how many new legal questions courts are confronting as a result of the climate crisis. Dealing with these new legal questions is going to put stress on existing legal doctrines and require courts to rethink some basic principles. Unfortunately, the Supreme Court is pushing …
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CONTINUE READINGReflections on a Century of “Regulatory Takings” Law
A Century Ago, the Supreme Court Created a Transformative Legal Doctrine Out of Whole Cloth
One hundred years ago this month, the U.S. Supreme Court issued a radical constitutional decision that over the last century has proven enormously consequential in a host of environmental, natural resources and public health contexts. In the December 1922 decision Pennsylvania Coal Company v. Mahon, a divided Supreme Court created the constitutional doctrine of “regulatory …
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CONTINUE READINGThe Illusions of Takings Law
Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …
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CONTINUE READINGSupreme Court Finds California Labor Access Regulation Works Unconstitutional Taking of Private Property
What Are the Implications of the Cedar Point Nursery Decision for Environmental, Natural Resources & Public Health Programs?
In a closely-watched property rights decision, the U.S. Supreme Court today held unconstitutional a longstanding California regulation allowing labor unions intermittent access to agricultural workplaces for labor organizing purposes. Reversing a decision of the Ninth Circuit Court of Appeals, a 6-3 Supreme Court majority ruled that the challenged regulation triggers a per se, compensable government “taking” …
CONTINUE READINGA Preview: Major Property Rights Case Currently Before U.S. Supreme Court
Decision in Cedar Point Nursery Could Imperil Key Health, Safety & Environmental Programs
On Monday, the U.S. Supreme Court will hear oral arguments in a major property rights case from California: Cedar Point Nursery v. Hassid. That litigation arises in a labor law context. But, depending on how the Court rules, the case could have major, deleterious impacts on a wide array of health, safety and environmental programs. …
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CONTINUE READINGImplementing the “Biden Environmental Litigation Bounce-Back”
Encouraging Signals As To How Biden’s USDOJ Will Resolve Environmental Lawsuits Originally Brought Against the Trump Administration
The transition from the Trump Administration to the Biden Administration makes for fascinating spectator sport. President Biden’s first month in office reveals that he and his Administration are committed to undoing the widespread damage former President Trump and his minions engineered across so many policy and legal areas. The environment is a particularly prominent example. …
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