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In the Wake of Lucas v. South Carolina Coastal Council: A Critical Look at Six Questions Practitioners Should Be Asking

January 1993

Citation: 23 ELR 10008

Issue: 1

Author: Robert F. Housman and Barry I. Pershkow

Editors' Summary: Lucas v. South Carolina Coastal Council evoked great interest during the U.S. Supreme Court's 1991-92 Term, attracting dozens of amicus briefs and producing speculation about whether the case would be a referendum on the entire environmental movement. In Lucas, the Court reversed the South Carolina Supreme Court's ruling that no compensation is due under the Fifth Amendment of the U.S. Constitution when a landowner's private use threatens serious public harm. Writing for the five-member majority, Justice Scalia set forth a new two-part takings standard. First, compensation is due under the Fifth Amendment when regulations enacted for public purposes deprive landowners of all economically beneficial use of their property. Second, under the nuisance exception to compensable takings, regulation may do no more than duplicate the result that the courts would reach under traditional principles of nuisance and property law. Before Lucas, courts used the nuisance exception to excuse the payment of compensation if the state action was within the broad scope of its police power. Now, the takings inquiry is limited to an assessment of the property's value before and after the alleged taking occurs, and the government may avoid compensation for a regulation that deprives landowners of all economic value of their property only when the government acts to prevent a traditional nuisance.

The two Dialogues below evaluate
Lucas' impact on takings law. In the first, Barry M. Hartman argues that the Court's decision in Lucas represents a necessary departure from a policy-based takings jurisprudence to an objective approach more consonant with the courts' proper constitutional role. In the second, Barry I. Pershkow and Robert F. Housman contend that the decision's impact will be minimal, assuming that courts will correctly apply Lucas only when a total loss of economically viableuse occurs. Ultimately, Lucas' impact on challenges to land use regulations will hinge on two questions: what constitutes a total loss of economically viable use, and when does a regulation go beyond traditional principles of nuisance and property law? Finding the answers will test the relationship of public and private interests in land use and environmental protection into the next century.

Mr. Pershkow is a Law Fellow with the Center for International Environmental Law in Washington, D.C. Mr. Housman is a staff attorney with the Center for International Environmental Law. He is also an Adjunct Professor of Law at the American University — Washington College of Law.

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