To what extent does federal, state and local government regulation implicate the Fifth Amendment to the Constitution's provision "nor shall private property be taken for public use, without just compensation"? Recently, debate on this issue focused on Lucas v. South Carolina Coastal Council both before and after the U.S. Supreme Court's decision on the last day of the 1991-1992 term.
From the outset, it is important to note that the Fifth Amendment Takings Clause does not prohibit takings of private property for public use; it only requires that just compensation be available through the courts where such a taking is found to have occurred. "So long as compensation is available for those whose property is in fact taken, the government action is not unconstitutional." Thus, despite loose statements from anti-regulation advocates, and occasionally from courts, suits seeking just compensation do not involve the issue of whether an "unconstitutional taking" has occurred.
This Article stresses two critical points. First, Fifth Amendment regulatory takings claims involve not merely a potential monetary remedy but also broad public policy issues. Anti-environmental activists have attempted to employ takings lawsuits in their three-pronged administrative, legislative and judicial assault on governmental initiatives to protect the health, safety and property rights of average citizens. Second, the judicial prong of this assault experienced a serious setback due to a number of Supreme Court decisions during the 1991-1993 terms. In particular, the holding in Lucas itself is extremely narrow. The significant post-Lucas judicial developments discussed below will demonstrate that the case has very little practical effect on regulation of real property.
Part II of this Article discusses the broad impact of takings claims on environmental regulations and how those regulations have weathered administrative, legislative and judicial attacks.
Part III addresses the Lucas opinion itself, first noting how its inconsistencies contribute to its limited impact, then discussing how its requirements for takings have been interpreted by subsequent courts as a refusal to expand takings law. Part III then examines how Lucas does not impact regulations governing wetlands, mining and endangered species.
Part IV examines Lucas in context: how takings claimants may lose under Lucas; how the claimant in Lucas fared on remand; how other decisions issued during the Supreme Court's 1991-1992 term shed light on the meaning of Lucas; and how post-Lucas federal and state court decisions interpret the opinion.
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