Takings Essay ⋆ Environment Essay Examples ⋆ EssayEmpire

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The “Takings” Clause of the Fifth Amendment of the U.S. Constitution requires the government to pay compensation to owners of private property when their land is appropriated for public uses such as building roads. In early cases, only the physical invasion of private property for public use was considered a just taking. For example, in 1871, in the case of Pumpelly v. Green Bay Co., the court ruled that when dam construction flooded private property, the loss of property was considered a taking. Conversely, regulatory action that affected the economic value of the property, such as rezoning legislation that forced an operating business to close, was not considered a taking.

A major shift in takings jurisprudence occurred in 1987 when the Supreme Court had to rule on three cases in the same term. The 1992 case of Lucas v. South Carolina Coastal Council is also an important case study supporting the claim that loss of economic value on private property due to governmental regulations constitutes a taking that requires just compensation. In 1986, David Lucas paid $975,000 for two residential lots on the Isle of Palms in South Carolina with the intention to build single-family homes on the properties. In 1988, the South Carolina Legislature enacted the Beachfront Management Act, which barred Lucas from building on his two parcels. Because the legislation had a significant economic impact on Lucas, rendering the lots practically “valueless,” the court ruled that this accomplished a taking and required compensation. As a result of this and similar cases, regulatory takings have since been asserted whenever a regulation has reduced the value of private property.

“Takings” has received a secondary definition under the Endangered Species Act (ESA) of 1973, which has significantly challenged both the freedoms Americans attach to private property and the legal understanding of what constitutes a taking. An important provision of the ESA prevents the “taking” of endangered species on both public and private land. In the context of the ESA, the definition of taking is expanded to mean to “harass, harm, pursue, shoot, wound, kill, trap, capture, or collect” a listed species.

As a result of the ESA, a legal debate has emerged: If a take of an endangered species is illegal on private property, does the prohibition against taking endangered species constitute a taking of the private property under the Fifth Amendment? This question poses a major concern to both environmentalists and landowners. Even if most Americans wish to prevent the extinction of endangered species, that does not establish that individual landowners should be compelled to pay for (or bear the burden of) their preservation. Many have argued that if the government fails to compensate landowners for providing a habitat for endangered species on their land, then a landowner is better off killing and burying the plant or animal than potentially losing the rights generally associated with private property.

The shift from focus on species protection under the ESA to protection of their habitats has resulted in further broadening of the applications of the takings clause. In 1978, the Supreme Court’s famous snail darter decision resulted in the temporary halting of the construction the nearly completed, multimillion-dollar Tellico Dam because it jeopardized the only known habitat of the endangered snail darters.

Another case involved logging in the Pacific Northwest, which was halted in the 1990s to protect the threatened spotted owl and its old-growth habitat, resulting in the loss of thousands of timberrelated jobs in rural Oregon and Washington. The spotted-owl controversy has become an emblematic case in the takings debate, pitting the need for jobs against the protection of animals.

The application of the takings clause in respect to the ESA and private property has created much debate as Americans grapple with the conflicts between economic and ecological priorities in land use. Legal scholar Carol Rose has argued that in the United States environmental protection seems to be in conflict with the concept of private property when burdens are placed on particular individuals who are asked to preserve wetlands or endangered species. However, both secure private property rights and effective environmental protection share a common goal-the enhancement of the overall social well-being, both private and public. Rose believes that the current friction exists as new understandings of environmental harms and what constitutes a taking confront preexisting property laws. Because the legal community is still defining the boundaries of this modern usage of taking under the ESA, further modifications of the law through court cases are expected.

Bibliography:

Lynn Dwyer, Dennis Murphy, and Paul Erlich, “Property Rights Case Law and the Challenge to the Endangered Species Act,” Conservation Biology (v.9/4, August 1995);
Robert Percival et , Environmental Regulation: Law, Science, and Policy (Aspen Publishers, 2003);
Carol Rose, “Property Rights and Responsibilities,” in Marian Chertow and Daniel Esty, eds., Thinking Ecologically: The Next Generation of Environmental Policy (Yale University Press, 1997);
Barton Thompson, Jr., “The Endangered Species Act: A Case Study in Takings and Incentives,” Stanford Law Review (v.49, 1997).