The Takings Executive Order: Constitutional Jurisprudence or Political Philosophy?

James M. McElfish Jr.

Editors' Summary: On March 15, 1988, President Reagan signed Executive Order 12630 entitled "Governmental Actions and Interference With Constitutionally Protected Property Rights." In the July issue of ELR, Roger Marzulla, head of the Land and Natural Resource Division of the U.S. Department of Justice, described the genesis of the takings Executive Order and how it might affect environmental regulation. Mr. Marzulla characterized the Order as a logical response to two 1987 regulatory takings decisions by the Supreme Court and concluded that the Order provides a systematic method for agencies to account for the takings implications of their actions without necessarily hindering vigorous enforcement of environmental laws. The authors of the two Dialogues that follow take a different view of the Executive Order. They assert that the Order imposes on federal agencies an expanded view of takings law not warranted by Supreme Court decisions, will not achieve its stated purposes, and will make environmental regulation more difficult.

[18 ELR 10474]

In its final year before the 1988 election, the Reagan Administration has issued a number of pronouncements attempting to cement in place several of the doctrinal changes it has wrought in the regulatory landscape over the past eight years. This recent efflorescence has included two sweeping executive orders — one on "Federalism," designed to consolidate and ratify the "New Federalism" philosophy announced in the Reagan first term,¹ and another setting out limits upon federal regulation, entitled "Government Actions and Interference With Constitutionally Protected Property Rights."² This latter Executive Order, while premised on "takings" jurisprudence under the Fifth Amendment, is more fundamentally a restatement of the Administration's core political philosophy of minimizing the intrusiveness of federal regulation upon private interests.³

The "takings" Executive Order is purportedly a response to two recent Supreme Court decisions — First English Evangelical Lutheran Church of Glendale v. County of Los Angeles⁴ and Nollan v. California Coastal Commission.⁵ But it goes beyond the holdings in either decision to prescribe for the federal government a strict regime of regulatory self-restraint. The Order has three features that will make the task of regulation more difficult. These are: (1) the Order's requirement that agencies prepare and submit to the Office of Management and Budget (OMB) takings implication assessment documents with proposed governmental actions that may affect private interest; (2) the requirement that no action be taken to regulate use of property unless the restriction or condition imposed will "substantially advance" the "same" governmental purpose as an outright governmental prohibition of the use or activity; and (3) the requirement that governmental regulation of any private property use may not be "disproportionate" to that use's contribution to the "overall problem" that the regulation is designed to redress.

A further feature of the Order should prove illuminating. The Order requires federal agencies to report on previous regulatory "takings" adjudications, and to update that information annually. This requirement should aid governmental decisionmakers by illustrating how seldom federal regulation is found to create a compensable "taking" within the meaning of the Fifth Amendment to the Constitution.

The Takings Implication Assessment

The Executive Order provides that, with certain enumerated exceptions, federal agency heads must evaluate the takings implications of proposed federal policies and actions — including proposed legislation and regulations — that affect or may affect the use of or interests in private property.⁶ The primary vehicle for this evaluation is the "takings implication assessment" (TIA).⁷ The TIA is another regulatory "hoop" for governmental regulators. It resembles the Regulatory Impacts Analysis (RIA) already required under Executive Order 12291, which was the Reagan first term effort designed to gain control over the federal bureaucracy in order to prevent perceived over-regulation.⁸ The TIA is an additional requirement designed to make agencies take a "hard look" at their proposed policies, actions, and regulations affecting private interests. It must be included in any submissions to the Office of Management and Budget — already required by Executive Order 12291 — and undoubtedly will give OMB further control over regulations and policy decisions.

As both the Executive Order and the Justice Department Guidelines interpreting the order make clear, the TIA dictates a policy choice of the alternative that poses the "least risk" to private interests.⁹ This is an interesting variation of risk assessment, which Congress more typically structures so as to compel the agencies to adopt policies and regulations that produce the least risk to public interests (i.e., health, safety, environment).¹⁰

The TIA must analyze the extent to which the proposed action will interfere with private property interests, applying the "governmental purpose" and "proportionality" tests discussed infra. In addition, it must arrive at a dollar "estimate" of the potential Tucker Act liability of the government should the action, legislation, or regulation be found to be a taking. Interestingly, this latter requirement only applies to "proposed action[s] regulating private property use for the protection of public health or safety."¹¹ This is probably due to a drafting error in the Order [18 ELR 10475] itself; the Justice Department's Guidelines make no such distinction. Under the Order as issued, however, regulatory actions aimed at the general public "welfare" (as opposed to health and safety) are arguably subject to less internal scrutiny.¹²

The TIA process is peculiar in a number of ways. First, it will clearly require a great deal of staff time to implement. The agencies are even now engaged in drafting their "supplemental guidelines" under § 5(e)(2) of the Order in cooperation with the Department of Justice. The agencies are attempting to develop valuation methodologies and internal guidance for the implementation of the ongoing TIA requirements. Staff economists and policymakers are devoting considerable efforts to this task. An agency official must be designated as the TIA compliance official. Each future rulemaking package, policy, legislative proposal, and other action must be accompanied by a completed TIA. When added to the existing RIA requirements, Paperwork Reduction Act requirements, small business impact analyses, National Environmental Policy Act (NEPA) obligations, and internal agency and OMB review, the TIA may well be the innovation that finally paralyzes the federal bureaucracy.

Second, the TIA appears to run counter to the protection of the public fisc. The creation of documents in the rulemaking record, or permit or policy record, that (1) actually assess takings possibilities in terms of "likelihoods" that these actions will be found to be takings, and (2) "estimate" probable dollar exposures, can only encourage litigation challenging those governmental actions that do occur and those regulations that are adopted.¹³ The assertion that the TIA and related materials are pre-decisional documents will not necessarily protect them from disclosure in civil discovery.¹⁴ Although the Executive Order contains the usual caveat that it is "not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States,"¹⁵ the government's own estimates set forth in the TIA will clearly be at least evidentiary in any action challenging a federal regulation, permit condition, or permit denial as taking in violation of the Fifth Amendment. It is likely that the Department of Justice lawyers handling the Tucker Act dockets will not find their task simplified by the existence of TIAs assessing the likelihood of takings findings and assigning a probable value.¹⁶

The "Substantially Advances" the Governmental Purpose Provisions

The Executive Order contains provisions that require that governmental agencies restrain themselves from marginal improvements in public health, welfare, and safety. It provides:

When an Executive department or agency requires a private party to obtain a permit in order to undertake a specific use of, or action with respect to, private property, any conditions imposed on the granting of a permit shall:

(1) Serve the same purpose that would have been served by a prohibition of the use or action; and

(2) Substantially advance that purpose.¹⁷

Before undertaking any proposed action regulating private property use for the protection of public health and safety, the Executive Department or agency involved shall …:

…

(2) Establish that such proposed action substantially advances the purpose of protecting public health and safety against the specifically identified risk.¹⁸

These provisions purport to find their basis in the "nexus" requirement enunciated by the Supreme Court in Nollan v. California Coastal Commission.¹⁹ In Nollan, the Court held that the California Coastal Commission's attempt to require private property owners to convey a public access easement across their beachfront as a condition of receiving a building permit gave rise to a taking. In its analysis the Court said that if an outright ban on an activity were sustainable as a noncompensable exercise of the police power, a less burdensome condition could also be upheld (and not give rise to a taking) if it served "the same governmental purpose" as the ban. The Court also referred to the "substantially advance the legitimate state interest" language found in Agins v. City of Tiburon,²⁰ stating that "we are inclined to be particularly careful about the adjective where the actual conveyancing of property is made a condition to the lifting of a land use restriction."²¹ Ultimately, the Court concluded that there was [18 ELR 10476] an insufficient nexus between the Commission's presumedly lawful ability to preserve visual access by denying the building permit outright, and its attempt to condition the permit in order to preserve lateral physical access (i.e., by requiring conveyance of an easement).

The Executive Order, however, goes well beyond the "nexus" requirement in Nollan in circumscribing federal permitting and health and safety regulation. It requires that if a condition is imposed it must serve the "same" purpose as a denial of a permit or prohibition of the activity, and that the condition or governmental regulation must "substantially advance" that purpose.²² In effect, the Order does not countenance either indirect regulation of activities, or the imposition of "optional" conditions.

Regulation and permitting actions, however, commonly include conditions that do not advance the "same" purpose as that which would be served by a denial or outright prohibition of a given activity. For example, government regulations may effectuate secondary purposes, or be designed to induce an unrelated but desired behavior (e.g., tax regulations imposing nondiscrimination requirements upon tax-exempt institutions; or Fair Labor Standards provisions applicable to government contractors). Licensing or permitting regulations also may have requirements or conditions that do not serve the same purpose as a "denial" of the license or permit (e.g., "fairness doctrine" requirements that broadcasters provide air time at no cost for responses on controversial issues).²³ A regulation need not serve the same purposes as a prohibition to be sustainable.

Similarly, many permits have conditions aimed entirely at providing greater ease in governmental oversight and enforcement. Specifications of reporting requirements, site access, monitoring equipment and monitoring frequency, for example, do not necessarily serve the "same" purpose as a "prohibition" of the regulated activity. Indeed, less intrusive provisions could probably be devised at less cost to the permittee and greater cost to the government (e.g., the government could conduct all sampling). Nevertheless, these enforcement-based conditions plainly satisfy the nexus test of Nollan.

The problem with the version of the nexus requirement set forth in the Executive Order is even more apparent when the "substantially advance" component of the requirement is examined. Many common permit provisions marginally advance the underlying governmental purpose, to the greater protection of the public health, safety, and welfare. Yet the Order states that "any" condition must not only serve the same purpose as a denial but must also "substantially advance" that purpose. This policy requirement may, in truth, be aimed at preventing the imposition of "nickel and dime" conditions upon hapless permittees by presumedly overzealous governmental regulators. But it does not plainly flow the Nollan decision.

The "substantially advance" language found in the majority opinion in Nollan is expressly drawn from Agins v. City of Tiburon. In Agins, the Court applied this standard to review a general zoning ordinance's effect on a parcel of property — viz. did the down-zoning of the appellants' property bear a substantial relationship to protection of public health, welfare, and safety? The Court found that the "general" scheme of regulation as applied to a particular property substantially advanced "legitimate state interests."²⁴ The substantially test is not a requirement to conduct a condition-by-condition review of a permit to conduct a regulated activity. Rather it is used to evaluate the effect of the regulation as a whole. Thus, in Nollan, the Court held that the real effect of the challenged governmental action was to require conveyance of a public easement, and hence was not substantially related to the claimed public purpose.²⁵ The regulatory link between the scheme and the public purpose is the basis of the substantiality test. The Executive Order, however, looks not to the link between the overall regulatory scheme and a legitimate public purpose, but to condition-by-condition review.

In many permitting decisions, there are numerous permit conditions involved. Some of these "substantially advance" the governmental purpose that would be served by a permit denial. Other conditions contribute more marginally to advance the governmental purpose. The latter are not constitutionally suspect by virtue of their limited intrusiveness. They in fact serve to protect public health, welfare, and safety. For example, permit conditions that specify a network of 12 monitoring wells rather than the minimum of 4 around a RCRA hazardous waste management unit may add only marginally to the protection of the public health and safety. But the regulatory scheme as a whole serves a legitimate public interest. Yet the Executive Order expressly directs agency decisionmakers that "any" permit conditions must "substantially advance" — not merely advance — the governmental purpose. This is not required by the Supreme Court decisions. Indeed, to the contrary, the courts give substantial deference to agency expertise in setting permit conditions in matters of public health and safety.

Agency decisionmakers should not be hamstrung by a requirement to forego each and every condition that is not itself a "substantial" advancement of the underlying regulatory goal. Moreover, under the"takings" decisions the "substantiality" consideration is at most one element in deciding whether a given scheme of regulation goes "too far."²⁶ Other elements include whether or not economically viable uses of the property remain. The Executive Order, however, makes this element determinative of the regulatory choice — thus precluding certain governmental actions or decisions that are not takings at all. This outcome clearly owes more to a political philosophy of regulation than to a neutral understanding of "takings" jurisprudence or to preservation of the public fisc.

[18 ELR 10477]

The Proportionality Requirement

The most unusual feature of the Executive Order is its creation of an entirely new requirement of "proportionality." The Order provides:

When a proposed action would place a restriction on a use of private property, the restriction imposed on the use shall not be disproportionate to the extent to which the use contributes to the overall problem that the restriction is imposed to redress.²⁷

This provision is purportedly based on footnote four to the Nollan decision.²⁸ In that footnote Justice Scalia suggested that if the landowners in that case had been "singled out" to bear the burden of remedying a problem to which they had contributed no more than other coastal landowners, the governmental action at issue "might violate either the incorporated Takings Clause or the Equal Protection Clause."²⁹ This footnote is the jurisprudential underpinning for the new "proportionality" requirement.

But the proportionality (of a use's contribution to a public health, welfare, or safety problem vs. the solution of the problem) is not a takings issue at all. The proper inquiry is whether the state's action is a valid exercise of the police power — which must include its conformance to equal protection standards. Then, and only then, does the takings inquiry occur — viz. does this exercise of the police power destroy a distinct property interest so as to deny economically viable use of the property? The Court's hint that the legitimate governmental purpose of the regulation could be assessed by looking to whether certain costs should be borne by the public as a whole rather than a single property owner goes to whether there is a scheme or plan of regulation (i.e., rather than a "spot zoning" form of taking). Where a neutral scheme or plan exists, the governmental action is less likely to be deemed a taking, despite its impact on particular pieces of property.³⁰ Also, despite the import of the Executive Order to the contrary, the Court did not use the term "proportional" or "proportionality" in Nollan. Proportionality is not a takings test.

The Executive Order postulates that regulations must "fit the crime" — i.e., by "fixing" only that part of the "overall problem" caused by the regulated property owner. This position, however, is contrary to virtually every form of police power regulation of property. For example, zoning laws typically regulate future uses, while those past uses which contribute "proportionally" to creation of the "problem" (e.g., overcrowding, loss of green space, inadequate transportation and sewage capacity) are allowed to continue. Similarly, governments often regulate that portion of the problem-causing activity that is easiest to correct, most cost-effective to correct, or that must be regulated first as a practical precondition to further action. For example, although point source discharges contribute far less to the pollution of U.S. waterways than non-point sources (such as agricultural runoff, road salt, etc.), they were regulated first — and more stringently — than their "contribut[ion] to the overall problem" of water pollution. The same is true for the strict regulation of commercial hazardous waste treatment, storage, and disposal facilities under RCRA. These are strictly regulated even though discharges of hazardous pollutants to sewer lines or land application of pesticides, which also contribute to the problem, are less strictly regulated. Oil and gas industry wastes were excluded from regulation as hazardous wastes under RCRA because of congressional judgments about the effect of such requirements upon the industry. Their exclusion means that other hazardous waste generators are bearing a "disproportionate" share of the cleanup and prevention responsibilities. Nearly every police power regulation falls disproportionately upon some segment of the industry, the general population, or property owners.³¹

Moreover, the very nature of governmental regulation requires that proportionality (i.e., fairness) be only one of many components considered in protecting the public health, welfare, and safety.³² The Executive Order, however, makes it determinative. By casting the issue in terms of the specific contribution to the "overall problem," the Order potentially thwarts creative, closely targeted, cost-effective solutions to serious problems of health, pollution, worker safety, and the like.

If applied, the new "proportionality" requirement will make rational regulation extremely difficult. The solutions to problems of public health, welfare, and safety are rarely mirror images of the conditions that led to their creation. Some forms of regulation or technical solutions for some contributing factors will remain unknown. Shall the government make no attempt — or only a "proportional" attempt — to solve a problem where certain contributing factors are beyond its reach? The Executive Order's requirement that government shall not burden any property owner with regulation beyond its own contribution to the "overall problem" reflects a political philosophy far more than a response to extant takings law.

The Beneficial Provision: An Inventory of Prior Regulatory Takings

Along with the three problematic provisions — the TIA, the "substantially advance" test, and the "proportionality" test — the Executive Order contains one very useful provision. It [18 ELR 10478] requires all departmental and executive agency heads to submit to the Office of Management and Budget by May 16, 1988, an "itemized compilation" of all takings awards made against rules and regulations of the respective agencies in Fiscal Years 1985, 1986, and 1987.³³ Such compilations are thereafter to be updated annually.³⁴

The value of this provision is that it should reveal the limited scope that the "takings" clause plays in ordinary governmental regulation and permitting. Claims dockets may be high, but actual awards against regulatory programs are infrequent and low. The data show that Executive Order 12630 is largely a philosophy of regulation built on a slim factual and jurisprudential foundation.

According to OMB, in response to a request under the Freedom of Information Act, the "takings" reports filed by the agencies pursuant to the Executive Order show no regulatory takings awards against the government in fiscal years 1985, 1986, and 1987. For its part, the Land and Natural Resource Division of the Justice Department filed its entire Tucker Act "takings" award figures for those three years. These were $ 23.1, $ 5.5, and $ 20.2 million, respectively. Of these figures, the vast majority were traditional nonregulatory takings.³⁵ There is no substantial record of takings by permit or regulation. Thus, the rationale of protecting the federal treasury through the Executive Order is unsupported by the data or recent judicial experience. The recent and continuing flurry of procedures, guidelines, economic analyses, and the like under the Order has undoubtedly already exceeded in cost the successful takings claims likely to be avoided.

This factual record makes it difficult to assess the effect, if any, of the Executive Order in avoiding future claims and awards. If, as is apparent, most or all regulatory takings claims are currently unsuccessful, then it is also apparent that even without the Executive Order the government has not engaged in significant regulation taking private property without just compensation. The claimed prophylactic effect of the Executive Order is unnecessary. As a result, it is difficult to understand why the Order has been issued at all, except as a statement of regulatory philosophy — or as a technical means of slowing the pace of regulation. It has little to do with judicial realities in defending governmental actions against private claims.

Mr. McElfish is a Senior Attorney at the Environmental Law Institute.

1. Exec. Order 12612, 52 Fed. Reg. 41685, ELR ADMIN. MATERIALS 45035 (Oct. 30, 1987). See Symposium, The New Federalism in Environmental Law: Taking Stock, 12 ELR 15065 (1982).

2. Exec. Order 12630, 53 Fed. Reg. 8859, ELR ADMIN.MATERIALS 45037 (Mar. 18, 1988).

3. Marzulla, The New "Takings" Executive Order and Environmental Regulation — Collision or Cooperation?, 18 ELR 10254 (July 1988) discusses the Order, drafted by the President's Task Force on Regulatory Relief. Assistant Attorney General Marzulla emphasizes the jurisprudential basis for the Order, portraying it simply as the logical governmental response to two Supreme Court decisions discussed infra.

4. 107 S. Ct. 2378, 17 ELR 20787 (1987).

5. 107 S. Ct. 3141, 17 ELR 20918 (1987).

6. The Order exempts actions abolishing regulations, discontinuing governmental programs, or modifying regulations in order to lessen restrictions on the use of private property. It also exempts various law enforcement and military-related functions, planning and research, and communications with state or local land-use planning agencies. Exec. Order § 2, ELR ADMIN. MATERIALS 45037.

7. This is the term coined by the Justice Department in its "Guidelines" implementing the Executive Order under § 1, ELR ADMIN. MATERIALS 45037. Attorney General's Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings 21 (June 30, 1988), ELR ADMIN. MATERIALS 35172 [hereinafter Guidelines].

8. 3 C.F.R. § 127, ELR ADMIN. MATERIALS 45025 (Feb. 17, 1981).

9. Guidelines, supra note 7, at 2, ELR ADMIN. MATERIALS 35168 ("In those instances in which a range of alternatives are [sic] available, each of which would meet the statutorily required objective, prudent management requires selection of the least risk alternative.").

10. For example, Congress required that the primary national ambient air quality standards (NAAQSs) Clean Air Act under § 109 provide for protection of public health with an "adequate margin of safety." 42 U.S.C. § 7409, ELR STAT. CAA 007. Compare Safe Drinking Water Act § 1401, 42 U.S.C. § 300f, ELR STAT. SDWA 41102.

11. Exec. Order § 4(d), ELR ADMIN. MATERIALS 45038. Assistant Attorney General Marzulla appends the words "or for other purposes" outside the quotation marks in his discussion of the TIA requirement under this section. See Marzulla, supra note 3, at 10258.

12. This contrasts with the usual takings analysis employed by the courts, wherein health and safety regulation receives greater deference than measures aimed at the general public "welfare." E.g., Keystone Bituminous Coal Association v. DeBenedictis, 107 S. Ct. 1232, 17 ELR 20440 (1987). Of course, if the omission of "welfare" in this section of the Order were deliberate, it may be that the Administration intended its agencies to apply greater scrutiny precisely in those areas where it knew the courts would not. It is most probable, however, that the Order was drafted with less care than it might have been and that all actions were intended to be subject to the same basic TIA requirements, relying on § 5(b) of the Order, ELR ADMIN. MATERIALS 45038.

13. Indeed, under the Order the estimated dollar value must be assigned even if the risk of a takings finding is deemed to be low. See, e.g., Guidelines, supra note 7, at 22, ELR ADMIN. MATERIALS 35173. This requirement creates potentially adverse material in the administrative record should someone subsequently bring a Tucker Act claim challenging the governmental action. Given that most regulatory and permitting activity is required by statute, the rules will be adopted and actions will be undertaken. They will merely hereafter be accompanied by documents potentially beneficial to private litigants.

14. Assistant Attorney General Marzulla suggests that the TIA will "normally" be exempt from production under the Freedom of Information Act, 5 U.S.C. § 552, ELR STAT. ADMIN. PROC. 011. Marzulla, supra note 3, at 10258. Like the RIA, however,the TIA will be part of the rulemaking record, and hence discoverable in actions challenging the federal rules.

15. Exec. Order § 6, ELR ADMIN. MATERIALS 45039.

16. An additional peculiarity of the TIA process is that the designated Justice Department official for overseeing agency implementation (and who must be notified of the agency officials responsible for ensuring compliance with the Executive Order) is the Assistant Attorney General for the Lands and Natural Resources Division, rather than the Assistant Attorney General for the Civil Division. Guidelines, supra note 7, at 21, ELR ADMIN. MATERIALS 35172. One would expect that most regulatory defenses and the majority of the Tucker Act docket would be handled by the latter official. Clearly, the chief impetus for this Executive Order has come from Administration desires to control undue environmental and natural resources regulation.

17. Exec. Order § 4(a), ELR ADMIN. MATERIALS 45038 (emphasis added).

18. Exec. Order § 4(d), ELR ADMIN. MATERIALS 45038 (emphasis added).

19. 107 S. Ct. at 3147, 17 ELR at 20921. See Marzulla, supra note 3, at 10257.

20. 447 U.S. 255, 10 ELR 20361 (1980).

21. 107 S. Ct. at 3150, 17 ELR at 20922.

22. In Nollan, the Court did not say that sustainability of a ban on an activity was the only test for a regulation or restriction. Indeed, many regulations are sustainable precisely because they are not a ban (or substitute therefor) — e.g., many regulatory permit schemes are sustainable, while an outright prohibition of the permitted activities might constitute a taking. The "nexus" requirement is only relevant where the claim is that the challenged action is less restrictive than a plainly lawful prohibition.

23. This example was, of course, itself the subject of deregulation efforts by the Administration prior to the recent "takings" decisions and Executive Order 12630.

24. 447 U.S. at 260, 10 ELR at 20362.

25. In Nollan, the Court found it unnecessary to decide how "substantial" a fit existed between the potential building permit denial and the permit condition requiring the landowners to convey a public access easement, holding that "this case does not meet even the most untailored standards" for the nexus. 107 S. Ct. at 3147, 17 ELR at 20921.

26. "[I]f regulation goes too far it will be recognized as a taking." "Pennsylvania Coal v. Mahon, 260 U.S. 393, 415 (1922).

27. Exec. Order § 4(b), ELR ADMIN. MATERIALS 45038.

28. See, e.g., Marzulla, supra note 3, at 10257 ("The Nollan decision contributes to the evolution of regulatory takings law by setting forth the principles of 'nexus' and 'proportionality'."). The Guidelines expressly rely on footnote 4 to the Nollan decision as creating the proportionality "principle." Guidelines, supra note 7, Appendix at 9, ELR ADMIN. MATERIALS 35177.

29. 107 S. Ct. at 3148 n.4, 17 ELR at 20920 n.4. The point was not expanded upon in the text, and the throwaway nature of the footnote was made clear both by Justice Scalia's use of the word "might," and the Court's further observation that "that is not the basis of theNollan's challenge here." Id.

30. See, e.g., Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 8 ELR 20528 (1978), cited in Nollan, 107 S. Ct. at 3146, 17 ELR at 20920 (upholding scheme of historic preservation against challenge that it "took" individual structures for the benefit of the public).

31. A proportionality standard is inconsistent with technology-based solutions as well. If we can achieve meaningful air quality improvements through reducing emissions by 90 percent from a class of industry, but such industry is only 20 percent responsible for the "overall problem" of air pollution, shall we limit our regulation of that industry so that we achieve no more than 20 percent of our overall reduction by regulating its emissions?

32. The proportionality feature of the Order is in some respects reminiscent of the recent Superfund Amendments and Reauthorization Act debate on who should pay for Superfund — manufacturers or chemical companies.

33. Exec. Order § 5(c), ELR ADMIN. MATERIALS 45038.

34. Exec. Order § 5(d), ELR ADMIN. MATERIALS 45038.

35. The takings awards and settlements listed by the Department of Justice involved property claims related to inclusion of lands within national park and wilderness area boundaries, claims against the government by its lessors and contractors, and claims involving inundation of private property by federal dams. Of the $ 23.1 million listed for fiscal year 1985, $ 21.0 million fit into these traditional takings categories. Likewise, $ 4.1 million of the $ 5.5 million in fiscal year 1986, and $ 14.1 million of the $ 20.2 million in fiscal year 1987 plainly fit into these categories. The remainder of the claims, with few exceptions, were simply not sufficiently characterized to permit a clear assessment as to whether any might be deemed "regulatory" takings. The bulk of the unclassified amount for fiscal year 1987 is a $ 5.5 million settlement for cancellation of the Fort Chafee oil and gas leases, which might conceivably be a one-time regulatory taking.