Turmoil Over "Takings": How H.R. 1534 Turns Local Land Use Disputes Into Federal Cases

Sharon Buccino

Ms. Buccino is Legislative Counsel for the Natural Resources Defense Council. She received her law degree from Stanford Law School and clerked for Justice Allen Compton of the Alaska Supreme Court.

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While the Republican's Contract With America has disappeared from the political landscape, many of its ideas continue to percolate in the 105th Congress. Development interests continue to promote federal legislation to expand opportunities for "takings" claims against the government. Through such takings claims developers or private landowners seek to be compensated for not polluting or not building on protected land. Frustrated with the limitations courts have placed on takings claims, developers have sought through legislation at both the federal and state levels to thwart the government's ability to restrict individual property use for the public good.

The fight over takings legislation was one of the most heated of the last Congress. Former Senate Majority Leader Robert Dole (R-Kan.) introduced a bill, S. 605,¹ that was even more extreme than the takings language passed by the House of Representatives as part of the Contract With America. Dole's bill would have required taxpayers to compensate businesses for lost profits, as well as land restrictions, resulting from health and safety regulations. The Senate Judiciary Committee approved the bill, but Senate leaders were never able to gather the support to justify bringing it to the floor for a vote.

Given the defeat of the Dole bill in the 104th Congress, private property rights advocates had to come up with a new strategy. A compensation bill like Dole's bill would not pass given the legitimate opposition to requiring the government to pay companies to obey health and safety laws. Consequently, proponents of takings legislation turned to a mechanism that they would try to sell as merely making procedural changes. H.R. 1534,² the Private Property Rights Implementation Act of 1997, is designed to make it easier and faster to bring takings claims in federal court. What it would do, however, is circumvent the opportunities that exist at the state and local levels to resolve land use disputes. By giving developers the opportunity to go quickly and directly to federal court, H.R. 1534 would undermine a city's leverage, giving the developers the upper hand in determining local land uses. Thus, H.R. 1534 could have the same chilling effect as previous takings proposals on government efforts to protect the quality of communities, including the water, the air, and the open space.

H.R. 1534 passed the House in October 1997 by a vote of 248 to 178.³ Similar bills, S. 1204⁴ and S. 1256,⁵ are now under consideration in the Senate. This Dialogue analyzes how H.R. 1534 would undermine environmental protection and local control over land use decisions. The analysis compares H.R. 1534 to the federal legislation defeated in the last Congress as well as to some of the state takings bills. Finally, the Dialogue articulates why the campaign to fundamentally alter takings jurisprudence is misguided.

What H.R. 1534 Would Do

H.R. 1534 would allow developers to sue cities and counties in federal courts for alleged "takings" of their real property before utilizing opportunities at the state and local levels to resolve land use disputes and ensure compliance with the Fifth Amendment's prohibition on uncompensated takings. The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use without just compensation.⁶ The Fifth Amendment is quite different from other parts of the Bill of Rights like the First Amendment which prohibits government infringement of the freedom of speech except under very narrow circumstances. The Fifth Amendment allows the government to take private property as long as it is for a public use and just compensation is paid.

Some takings requiring compensation, such as the condemnation of a piece of property to build a highway, are obvious. But others are less obvious. The question of when a regulation such as a zoning restriction or a prohibition on filling a wetland becomes a taking that requires the government to compensate the private landowner has become a very contentious issue in communities across the country.

The courts have recognized that a regulation that goes too far constitutes a taking and triggers compensation.⁷ Under current law, property owners who challenge a local decision limiting the use of their property as a taking must first seek [28 ELR 10084] compensation through state court proceedings before filing a claim in federal court.⁸ No violation of federal law has occurred until a claim for compensation has been made and denied. As noted above, the U.S. Constitution does not prohibit the taking of property, only the uncompensated taking.

Expansion of Ripeness Doctrine

H.R. 1534, however, would allow developers to bypass local procedures, as well as the state courts, and bring takings claims against cities and states directly in federal court. The bill would do this by unilaterally declaring such claims to be "ripe," i.e. timely for adjudication in federal court.⁹ Never before has a federal statute sought to deprive federal courts of the ability to keep their dockets free from unripe claims.

H.R. 1534 would amend 28 U.S.C. § 1343 to add a subsection (e) providing:

any claim … to redress the deprivation of a property right or privilege secured by the Constitution shall be ripe for adjudication by the district courts upon a final decision rendered by any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or territory of the United States, that causes actual and concrete injury to the party seeking redress.¹⁰

Traditionally, the concept of "final decision" has required the exhaustion of administrative remedies.¹¹ H.R. 1534, however, defines "final decision" to require only that an appeal of the initial decision be filed.¹²

Such change in the ripeness doctrine would seriously undermine a city or county's leverage in negotiating solutions to land use disputes. Most disputes about property use are resolved as the result of a back-and-forth process between local government officials and developers. A city might deny a permit for a full-scale commercial development, but be willing to allow a smaller residential development. Through this process, a city is able to shape the kind of growth it wants in the community. By allowing a developer to drag a city into federal court after simply filing an appeal of the initial denial, H.R. 1534 would promote litigation at the expense of negotiated solutions. The expense of defending such litigation could compel a city to accede to the developer's wishes.

Ironically, this legislation is being promoted by the same members of Congress who consistently sound the rallying cry of getting the federal government out of local affairs. Take, for example, Rep. John Linder (R-Ga.) who stated, "Republicans trust local leaders to make better spending decisions than the Federal Government."¹³ On another occasion, Rep. J.D. Hayworth (R-Ariz.) exclaimed, "I simply reject the premise that Washington, DC, is the font of all wisdom, and that we can manage every business and run every life better from the floor of this House than those individuals [speaking of his constituents] can do for themselves."¹⁴ In the words of Rep. Todd Tiahrt (R-Kan.), "For too long Washington has dictated to the people what they should do and how they should do it."¹⁵ Also on the House floor, Rep. Jack Kingston (R-Ga.) proclaimed, "My people would do fine without Washington command and control bureaucrats telling them how to run education, telling them how to run the environment, telling them how to run health care, telling them how to run welfare."¹⁶ On yet another occasion, Rep. Peter Hoekstra (R-Mich.) bemoaned, "Too often in Washington we have begun to ask Washington, this city, to do things that are better done at a State and local level."¹⁷ All of these representatives voted for H.R. 1534 despite its devastating effects on local control.¹⁸

H.R. 1534 also explicitly provides that a final decision, and therefore the right to go to federal court, does not require the party seeking redress to exhaust judicial remedies in the state.¹⁹ This change not only infringes on state rights, but will lead to poor decisions. Federal courts will be asked to decide whether an uncompensated taking has occurred before the claimant is required to seek compensation in state court. As discussed above, the taking of property is lawful. Only an uncompensated taking violates the Fifth Amendment. Often a state constitution or statute provides for compensation for restrictions of property use. H.R. 1534 denies state courts the opportunity to resolve such claims before a federal lawsuit is filed. By giving a private landowner the right to go directly to federal court, H.R. 1534 would force federal courts to decide whether a violation of federal law has occurred before an adequate factual record has been established.

Elimination of Abstention

H.R. 1534 further infringes on state authority by prohibiting federal courts from abstaining, that is deferring to state courts, to decide takings claims. Out of respect for state sovereignty, federal courts have traditionally deferred to state courts to resolve state issues tied up with a federal claim.²⁰ Section 2 of H.R. 1534, however, provides that a district [28 ELR 10085] court reviewing a case involving real property "shall not abstain from exercising or relinquish its jurisdiction to a State court."²¹

The prohibition is limited to cases where no claim of a violation of a state law, right, or privilege is alleged. Many cases, however, involve state-law issues even though the claimant has not asserted a state-law claim. A challenge, for example, under the Fifth Amendment of the U.S. Constitution to a local decision denying approval to build a shopping mall or other development can raise state-law issues even though the claimant asserts no claim based directly on state law. In Suitum v. Tahoe Regional Planning Agency,²² for example, the property owner challenged a local building restriction solely on federal grounds, claiming the restriction violated the Fifth and Fourteenth Amendments of the U.S. Constitution. The case, however, involved several state and local issues including the allocation of development rights, the relevance of transferable development rights to whether a taking has occurred, and what constitutes just compensation under state procedures.

By banning abstention, H.R. 1534 would insert federal courts into the resolution of state and local issues. The bill attempts to reduce the adverse effects of its abstention ban by allowing for certification of issues to state courts under narrowly defined circumstances.²³ Many state courts, however, do not accept certified questions, and thus the bill would force federal courts to resolve state-law issues on which they would otherwise defer to state or local tribunals.

Potential Changes to Takings Standard

The bill has been promoted as merely making procedural changes to expedite the process by which aggrieved property owners can obtain relief. No one is against making it easier for those with legitimate grievances to get them resolved. As a result, one of H.R. 1534's chief proponents, the National Association of Home Builders, was able to sign up a large number of representatives as cosponsors by telling them that the bill did not change any substantive law; instead, it only changed the process of complying with the law. At the time the bill was considered by the House Judiciary Committee, it had 233 cosponsors. What the advocates of the bill did not tell members of Congress was how H.R. 1534's procedural changes could in fact dramatically alter takings jurisprudence and limit local authority to protect communities from environmental threats and other undesired uses.²⁴

By changing the ripeness doctrine, H.R. 1534 would force courts to determine whether a regulation has gone too far before they know how far the regulation actually goes. The U.S. Supreme Court has consistently recognized the government's right to regulate private property for the public good without compensating the landowner for lost value that might result. As Justice Holmes stated, "government could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law."²⁵ It is only when government regulation "goes too far" that compensation is required.²⁶ While it has failed to provide a bright line for making such determinations, the Supreme Court has held that a regulation that deprives an owner of all "economically viable" use of his or her property constitutes a taking requiring compensation.²⁷

If H.R. 1534 were enacted into law, developers could sue cities in federal court after simply filing an appeal of the denial of an initial request to build. The court would know what the city had denied, but it would not know what the city was willing to approve. As a result, courts would be asked to decide whether a regulation has gone too far before knowing how far the regulation goes.

H.R. 1534 would also undermine the basic tenet of takings jurisprudence that requires the examination of the effect of the challenged government action on the relevant parcel as a whole. The courts have consistently rejected attempts by claimants to segment property into the affected and unaffected portions of the relevant parcel.²⁸ In analyzing whether a regulation constitutes a taking requiring compensation, the Supreme Court has looked at whether the property owner is denied all economically viable use of his or her property.²⁹ If an owner could make a claim based only on the affected portion of the property, many more takings would occur. All economically viable use of the portion may be denied even though many uses of the entire parcel remain.

If H.R. 1534 were enacted into law, courts would be forced to decide takings questions based on the denial of use of a portion of property. Suppose, for example, an owner seeks permission to develop a 50-acre coastal strip of a 1,000-acre parcel. If the city denies the request and the owner alleges that the denial constitutes a taking of the 50 acres, the claim would be ripe under the bill, regardless of whether the owner has sought and been denied permission to develop the other 950 acres. Even though the bill explicitly provides that "nothing … alters the substantive law of takings,"³⁰ courts would be compelled to decide cases before a complete picture of allowable uses of the parcel as a whole is available.

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How H.R. 1534 Compares With Other Takings Legislation

H.R. 1534 is simply the latest of many attempts to enact legislation at both the federal and state levels that would expand the government's obligation to pay individuals and companies for restricting the use of their property. In the last decade, the Supreme Court has shown a greater willingness to review regulatory restrictions on private property.³¹ Nevertheless, the Court still essentially requires either total loss of economic viability or a physical invasion of land to find a taking requiring compensation under the Fifth Amendment. As a result, private property rights advocates have tried to create new statutory rights to compensation.

Takings Legislation in the 104th Congress

Such legislation was aggressively promoted in the last Congress, but failed to pass. Within the first 100 days of the 104th Congress, the House of Representatives approved a takings bill, H.R. 925,³² that would have required taxpayers to pay for countless acts for which the Constitution does not require payment. Instead of requiring the denial of all economically viable use, H.R. 925 would have required the government to compensate landowners denied 20 percent or more of their property's value. The bill went even further, requiring payment when "any portion" of the property has been reduced in value by 20 percent or more.³³ Of course, any restriction can result in a reduction of value of 20 percent or more if the portion is drawn narrowly enough.

H.R. 925 would have imposed tremendous, new financial burdens on the government, making it impossible to adequately protect the public's homes, communities, and work-places, or the environment. If taxpayers must pay companies to obey the law, as H.R. 925 would have required, enforcement would become so costly as to be impossible. The Office of Management and Budget estimated that the compensation costs of H.R. 925 would have been $ 28 billion over seven years.³⁴

An even more extreme bill, S. 605, was considered in the Senate. The Senate bill was not limited to restrictions on real property, but defined property rights to include "any interest understood to be property under common law."³⁵ Such a broad definition of property could have excused companies from incorporating public health and environmental protection into the cost of doing business. S. 605 would have turned the "polluter pays" principle on its head. The government would have been responsible for paying the polluters if it wanted them to clean up their acts. Furthermore, unlike H.R. 925, the Senate bill was not limited to federal agency actions. S. 605's reach would have extended to state and local government actions taken to carry out federal laws—like the Clean Air Act, the Safe Drinking Water Act, and the Clean Water Act—as well as to a long list of state programs receiving federal funds.³⁶

Although takings legislation in the 104th Congress quickly passed the House, many senators recognized the bill's devastating consequences once they took a serious look at it. The Clinton Administration vigorously opposed S. 605 and pledged a veto if the bill or similar legislation reached the President's desk.³⁷ The support did not exist in the Senate to bring takings legislation to a vote on the floor. To date, no new federal legislation has been enacted to expand opportunities to bring takings claims against the government.

State Takings Legislation

Several states, however, have approved new laws giving residents greater opportunities for compensation under state law than is available under federal law.³⁸ As of 1996, 20 states had enacted takings legislation in the previous five years.³⁹ Some are compensation bills, like S. 605 and H.R. 925, that require taxpayer funded payments to those who claim that certain laws restrict their property use. Others are assessment bills that generally require local governments to conduct complex and expensive studies to predetermine how their programs might affect property owners throughout the state.

Most assessment statutes assert that they do not enlarge or change substantive takings law, but rather are intended to facilitate compliance with existing constitutional standards. Some states merely require that the state's Attorney General assess whether proposed state rules constitute a taking.⁴⁰ Other statutes, however, go further to require a state's Attorney General to publish guidelines to aid government agencies in their own assessments of proposed rules and regulations.⁴¹ Some statutes specify what must be included in such assessments. The Utah law, for example, requires an assessment of alternatives to the proposed regulation.⁴² Other statutes explicitly require agencies to estimate the potential cost [28 ELR 10087] in the event compensation must be paid and identify the source of payment that is available to pay compensation.⁴³ Although such statutes do not directly require compensation, the additional analysis itself costs money and could have a chilling effect on the willingness of governments to aggressively enforce environmental protections.

A few of the assessment statutes could create new opportunities for landowners to sue government agencies in court. The Texas statute, for example, provides that a government action requiring a taking assessment is void if an assessment is not prepared, and provides that an affected property owner can bring suit to invalidate government actions lacking an assessment.⁴⁴ Even in cases where the statute does not explicitly provide for judicial review, courts may authorize it in order to make assessment statutes effective. Under such rationale, courts have recognized judicial review under the National Environmental Policy Act even though the Act is silent on the subject.⁴⁵ Three statutes preclude any judicial review, explicitly limiting the statutes' enforcement mechanisms to self-enforcement.⁴⁶

State laws that provide expanded rights to compensation will have a more dramatic effect on environmental protection than assessment statutes. These statutes define what constitutes a taking generally by identifying a percentage decrease in property value that triggers compensation. While the Supreme Court has traditionally required the loss of all economically viable use, legislation has been introduced in several states that requires compensation when government action results in any diminished value.⁴⁷ None of these extreme bills has been enacted into law.

Nevertheless, as of last year, four states⁴⁸ have enacted some kind of compensation bill. These statutes would find a taking for diminution in property value ranging from 20 percent to 40 percent.⁴⁹ The most rigorous takings bill to date was enacted by Texas in 1995. That law provides that a taking occurs when government action reduces the value of property by 25 percent or more.⁵⁰ The statute applies to government action that affects private property "in whole or in part or temporarily or permanently." It also requires state agencies to write "taking impact assessments" for almost any rule that might affect property interests.⁵¹

The Case Against Takings Legislation

Although different in form from the assessment and compensation bills previously considered, the bill being considered before Congress this year could have the same destructive effect. While protecting the rights of a few—those who want to develop their property commercially—H.R. 1534 would deprive local governments of their ability to protect the property of ordinary homeowners and the environment enjoyed by all.

H.R. 1534 and other takings legislation have been promoted as necessary to ensure fairness. The legislation is intended to compensate private landowners for something that has been unjustly taken from them by the government. This position, however, is based on an ill-conceived notion of property. It assumes that property ownership involves an established bundle of entitlements, including various use and development rights. According to those who hold this view, government regulations that restrict the use of property in any way take some of these preexisting property rights, requiring compensation.⁵²

Such notion of property fails to recognize that property is in fact a social construct—it would not exist without the state and is therefore subject to certain implied limitations. Property rights have always been bounded by the rights of others. One has never had the right to use one's property in a way that injures others.⁵³ American property law has also consistently recognized the government's ability to limit property use for the public good.⁵⁴ Private property rights have been limited where necessary to protect public rights in [28 ELR 10088] shared resources.⁵⁵ Consequently, legislation that alters the takings standard is creating a new property interest, rather than protecting preexisting rights.

Many of the takings legislative proposals acknowledge at least some limitation to property rights. Several state statutes exempt regulation of activities that would constitute a common-law nuisance from triggering the payment of compensation. Former Senator Dole's proposal, S. 605, included a similar nuisance exemption.⁵⁶ However, many government activities important to a community's character and environment would not fall within such nuisance exemption. On several occasions, courts have found that polluting activities do not constitute nuisances under state law.⁵⁷

Recently, courts have upheld government actions not because the regulated activities were necessarily nuisances, but because the government actions were justifiable under a broad police power. In North Carolina, for example, a chemical company unsuccessfully challenged a county's denial of a permit to operate a hazardous waste facility as a taking.⁵⁸ Just last year, proprietors unsuccessfully filed takings challenges to city restrictions in Tampa, Florida, and Mobile, Alabama, on topless and exotic dancing.⁵⁹ In these cases and others like them, the courts have upheld city efforts to say no to toxic dumps, topless bars, and other inappropriate activities. H.R. 1534 would change the balance of power between the developer and the city, forcing local governments across the nation to allow a wide range of activities that harm neighbors and communities.

Never before has federal legislation directly limited local authority as H.R. 1534 would. As discussed above, decisions about local land use would be removed from the hands of local officials to federal courts. Admittedly, the enactment of H.R. 1534 would not require courts to decide takings cases differently. The new opportunities to sue given to landowners by H.R. 1534, however, would chill efforts by cities to conserve open space, to prevent coastal erosion, to preserve wetlands, and to take other important actions for the public good. Cities would sometimes choose not to regulate rather than incur the costs of litigation.

H.R. 1534 would also undermine the federal government's ability to protect the environment. The bill's declaration of ripeness applies to federal, as well as state and local, government actions.⁶⁰ The federal environmental statutes are carefully crafted to prevent environmental degradation and to protect human health and safety. These protections are premised on the restriction of harmful uses of private property to protect the public good. By allowing for premature federal court challenges, H.R. 1534 would disrupt the delivery of these federal protections.

Some may argue that a bill like H.R. 1534 is necessary to ensure that government agencies comply with constitutional protections. Opportunities already exist, however, to seek redress through the judicial process for damages resulting from unconstitutional government action. Furthermore, federal agencies already take into account the impact of their actions on private property under a Reagan Administration executive order.⁶¹ The U.S. Department of the Interior has gone beyond the requirements of this executive order to put in place several reforms to ease the burden of endangered species protections on private property owners.⁶² If the process at the local level is too cumbersome, changes at the local level should be pursued. A one-size-fits-all bill such as H.R. 1534 is the wrong way to go.

Conclusion

H.R. 1534 represents the latest attempt by private property advocates to expand opportunities for takings claims against the government. The bill is significantly different from assessment and compensation proposals previously put forward. Despite being sold as merely making procedural changes, H.R. 1534 would nevertheless seriously undermine local authority to protect the air, the water, and the open space we all enjoy. For the first time, federal takings legislation would directly affect local government actions. The bill has received considerable support in Congress, having passed the House of Representatives on October 22, by a vote of 248 to 178. Similar legislation is likely to see action in the Senate early in 1998. Hopefully, the senators will recognize the serious consequences of this proposal. Not only is H.R. 1534 based on an ill-conceived notion of property, but it protects the property of only a few—those who want to develop. Most individual property owners recognize the importance of environmental and land use protections in preserving their property values, as well as their quality of life.

1. S. 605, 104th Cong. (1995).

2. H.R. 1534, 105th Cong. (1997).

3. 143 CONG. REC. H8940 (daily ed. Oct. 22, 1997).

4. S. 1204, 105th Cong. (1997).

5. S. 1256, 105th Cong. (1997).

6. U.S. CONST. amend. V ("nor shall private property be taken for public use, without just compensation").

7. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).

8. Suitum v. Tahoe Reg'l Planning Agency, 117 S. Ct. 1659, 1665, 27 ELR 21064, 21065 (1997); Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-96 (1985).

9. H.R. 1534, 105th Cong. § 2 (1997) (amending 28 U.S.C. § 1343 by adding (e)).

10. Id.

11. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 765 (1975) ("Exhaustion is generally required as a matter of preventing premature interference with agency processes …").

12. H.R. 1534, § 2 (amending 28 U.S.C. § 1343 by adding (e)(2)(A)).

13. 141 CONG. REC. H2319 (daily ed. Feb. 28, 1995).

14. Id. at H382 (daily ed. Jan. 19, 1995).

15. Id. at H378.

16. 142 CONG. REC. H3727 (daily ed. Apr. 23, 1996).

17. 143 CONG. REC. H933 (daily ed. Mar. 12, 1997).

18. As originally drafted, the bill would have had an even more extreme effect on local authority. The bill as introduced would have allowed developers to go to federal court in many cases before local elected officials had any opportunity to weigh in on the decision. In California, for example, the planning department makes the initial decision on an application for a permit. The initial appeal is often to an administrative body. Given the right that H.R. 1534 creates to go to court after filing an initial appeal, those elected to city councils and boards of supervisors (and thus accountable to community residents) would be denied the opportunity to review these decisions.

An amendment was added to the bill in the House Judiciary Committee to address such a direct infringement on local authority. The bill now requires a private landowner before going to federal court to apply for and be denied review by elected officials in cases where the applicable statute or ordinance provides for such review. H.R. 1534, § 2 (amending 28 U.S.C. § 1343 by adding (e)(2)(A)(iii)). While not as extreme as the original version, H.R. 1534 still removes the ultimate decisionmaking authority to federal courts and shifts the balance of power to developers to determine local land uses.

19. Id. § 2 (amending 28 U.S.C. § 1343 by adding (e)(3)).

20. New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 360-61 (1989).

21. H.R. 1534, § 2 (amending 28 U.S.C. § 1343 by adding (c)).

22. 117 S. Ct. 1659, 27 ELR 21064 (1997).

23. H.R. 1534, § 2 (amending 28 U.S.C. § 1343 by adding (d)).

24. After learning more about its potential impact, 13 cosponsors, in fact, voted against the bill when it came to the House floor. These representatives included both Republicans and Democrats: Brian Bilbray (R-Cal.), George Brown (D-Cal.), Norman Dicks (D-Wash.), Benjamin Gilman (R-N.Y.), Steve Horn (R-Cal.), Nancy Johnson (R-Conn.), James Oberstar (DFL-Minn.), John Porter (R-Ill.), Marge Roukema (R-N.J.), Mark Sanford (R-S.C.), Jim Saxton (R-N.J.), Christopher Smith (R-N.J.), and Ellen Tauscher (D-Cal.). Rarely have so many cosponsors of a bill in the end voted against it.

25. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).

26. Id. at 415.

27. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019, 22 ELR 21104, 21108 (1992).

28. Concrete Pipe & Prods. of Cal., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 643-44 (1993).

29. Lucas, 505 U.S. at 1019, 22 ELR at 21108; see also Nollan v. California Coastal Comm'n, 483 U.S. 825, 834, 17 ELR 20918, 20920 (1987); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 495, 17 ELR 20440, 20446 (1987); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295-96, 11 ELR 20569, 20576-77 (1981); Agins v. City of Tiburon, 447 U.S. 255, 260, 10 ELR 20361, 20362 (1980) (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 8 ELR 20528 (1978)).

30. H.R. 1534, § 2 (amending 28 U.S.C. § 1343 by adding (f)).

31. For more than 70 years after recognizing the concept of a regulatory taking in the Pennsylvania Coal case, the Supreme Court did not invalidate a single government action as a regulatory taking. In the past decade, however, the Court has upheld several takings claims against government land use restrictions. See Dolan v. City of Tigard, 512 U.S. 374, 24 ELR 21083 (1994) (retail store owner successfully challenged building permit condition requiring dedication of greenway and pedestrian/bicycle pathway); Lucas, 505 U.S. 1003, 22 ELR 21104 (property owner successfully challenged state statute limiting development in coastal zone); Nollan, 483 U.S. 825, 17 ELR 20918 (requiring grant of public easement as condition of permit to build house on private beachfront property held to effect taking of property without just compensation in violation of the Fifth Amendment); and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 17 ELR 20787 (1987) (regulation prohibiting construction in flood zone held to entitle property owner to compensation where owner is deprived of all use of property even if only for a limited period of time).

32. H.R. 925, 104th Cong. (1995).

33. Id. § 3(a) (as passed by the House).

34. S. REP. NO. 104-239, at 28-29 (1996).

35. S. 605, 104th Cong. § 203(5) (1995).

36. Id. § 203(2), (6).

37. OFFICE OF MANAGEMENT & BUDGET, STATEMENT OF ADMINISTRATION POLICY REGARDING S. 605 (May 9, 1996).

38. Mark M. Cordes, Leapfrogging the Constitution: The Rise of State Takings Legislation, 24 ECOLOGY L.Q. 187, 204 (1997) (provides good overview of various state developments).

39. The 20 states are Arizona, Delaware, Florida, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Missouri, Mississippi, Montana, North Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming. AMERICAN RESOURCES INFORMATION NETWORK, SUMMARY OF STATE TAKINGS LEGISLATION (1996).

40. See, e.g., IND. CODE ANN. §§ 4-22-2-31 to 4-22-3-32 (West. Supp. 1996); DEL. CODE ANN. tit. 29, § 605 (Supp. 1996).

41. See, e.g., IDAHO CODE § 67-8001 (1995); TENN. CODE ANN. §§ 12-1-201 to -203 (Supp. 1996).

42. UTAH CODE ANN. § 63-90-4 (Supp. 1996).

43. See, e.g., LA. REV. STAT. ANN. § 3:3609(B)(8), (9) (West. Supp. 1997).

44. TEX. GOV'T CODE § 2007.044(a) (West 1996).

45. Aberdeen & Rockfish R.R. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 319, 5 ELR 20418, 20425 (1975); Dubois v. U.S. Department of Agriculture, 102 F.3d 1273, 1284 (1st Cir. 1996) ("It is the role of the courts on judicial review to ensure that this legal duty [to assess environmental impacts under NEPA] is fulfilled."); Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151, 15 ELR 20248, 20252 (D.C. Cir. 1985) ("That courts must play a cardinal role in the realization of NEPA's mandate is beyond dispute."); Sierra Club v. Peterson, 717 F.2d 1409, 1413, 13 ELR 20888, 20890 (D.C. Cir. 1983) ("the court must insure that the agency took a 'hard look' at the environmental consequences of its decision.").

46. See IDAHO CODE § 67-8003 (1995) ("nothing in this section grants a person the right to seek judicial relief requiring compliance with the provisions of this chapter"); KAN. STAT. ANN. § 77-706(2) (Supp. 1995) ("nothing in this act shall be construed to … create a private cause of action or limit any right of action pursuant to other statutes or at common law"); WASH. REV. CODE § 36.70A.370(4) (West Supp. 1997) ("nothing in this section grants a private party the right to seek judicial relief requiring compliance with the provisions of this section").

47. The Washington state legislature, for example, passed a bill that required payment for any diminution in value. Private Property Regulatory Fairness Act of 1995, ch. 98, 1995 Wash. Legis. Serv. 261 (West). This bill was subsequently rejected by popular statewide referendum. David Postman, Washington State Rejects Land Rights Law; Defeat May Slow Down National Legislation, WASH. POST, Nov. 11, 1995, at El.

48. Florida, Louisiana, Mississippi, and Texas.

49. Rather than provide a bright-line test, the Florida statute provides compensation and other remedies for real property owners whose property has been "inordinately burdened" by state or local government action. FLA. STAT. ANN. § 70.001(2) (West Supp. 1997).

50. TEX. GOV'T CODE ANN. § 20007.002 (a taking occurs when a government action "affects an owner's private real property … in whole or in part or temporarily or permanently … and is the producing cause of a reduction of at least 25 percent in the market value of the affected real property.").

51. Id. § 20007.043(a); see Cordes, supra note 38, at 215-20 for a detailed discussion of the Texas, as well as the Florida, statute.

52. See, e.g., RICHARD EPSTEIN, PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985). Professor Epstein asserts that any land use restriction, including zoning, constitutes a taking, because certain use or development rights are being removed from the bundle of rights. Id. at 130-34. He goes on to declare that "all regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state." Id. at 95.

53. See, e.g., Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 434 (1989); Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 254 (1917); Camfield v. United States, 167 U.S. 518, 522 (1897).

54. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) (public restrictions on land, such as zoning, do not necessarily infringe private property interests); Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (private property limited by other public interests, including the exercise of police power "to protect the atmosphere, the water and the forests"); Mulger v. Kansas, 123 U.S. 623, 665 (1887) ("all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community").

55. See Carol M. Rose, A Dozen Propositions on Private Property, Public Rights and the New Takings Legislation, 53 WASH. & LEE L. REV. 265 (1996). Professor Rose identifies protected public rights in resources that "could not easily be privatized … [but were] nevertheless valuable to many people and subject to a kind of easement for public use, including passive uses such as simple enjoyment of clean air and quiet surroundings." Id. at 271; see also Gerald Torres, Taking and Giving: Police Power, Public Value, and Private Right, 26 ENVTL. L. 1 (1996) (provides provocative discussion of appropriate limits on private rights for public good).

56. A nuisance has traditionally been defined as an activity that unreasonably interferes with another's use and enjoyment of land. RESTATEMENT (SECOND) OF TORTS §§ 821F, 822 (1979); Barrett v. Atlantic Richfield Co., 95 F.3d 375, 383 (5th Cir. 1996); Veiga v. McGee, 26 F.3d 1206, 1212-13 (1st Cir. 1994); Prah v. Maretti, 321 N.W.2d 182, 187, 12 ELR 21125, 21127 (Wis. 1982).

57. Cereghino v. Boeing Co., 826 F. Supp. 1243, 1247-48 (D. Or. 1993) (groundwater contamination held not to be a nuisance); American Glue & Resin, Inc. v. Air Prods. & Chems., Inc., 835 F. Supp. 36, 42-43 (D. Mass. 1993) (hazardous waste contamination held not to be a nuisance); O'Leary v. Moyer's Landfill, Inc., 523 F. Supp. 642, 657-58 (E.D. Pa. 1981) (contamination of creek from a leaking landfill held not to be a nuisance); Johnson v. Whitten, 384 A.2d 698, 701-02 (Me. 1978) (flooding caused by filling of adjacent property may not be a nuisance).

58. Guilford County Dep't of Emergency Servs. v. Seaboard Chem. Corp., 441 S.E.2d 177 (N.C. Ct. App.), review denied, 447 S.E.2d 390 (N.C. 1994).

59. Specialty Malls of Tampa v. City of Tampa, 916 F. Supp. 1222 (M.D. Fla. 1996); Sammy's of Mobile, Ltd. v. City of Mobile, 928 F. Supp. 1116 (S.D. Ala. 1996).

60. H.R. 1534, § 3 (amending 28 U.S.C. § 1346 by adding (h)).

61. Exec. Order No. 12630, 53 Fed. Reg. 8859 (Mar. 18, 1988).

62. For example, recent U.S. Department of the Interior (DOI) regulations provide a presumptive exemption from the Endangered Species Act (ESA) for up to five acres in single ownership. 50 C.F.R. §§ 17.01-.108 (1995). The DOI has also created a "safe harbor" program to encourage property owners to enhance wildlife habitat while allowing them to reduce such habitat later without incurring additional liability under the ESA. 60 Fed. Reg. 10400 (Feb. 24, 1995). Finally, the DOI is working with the U.S. Environmental Protection Agency to implement a "no surprises policy" to assure property owners who participate in voluntary habitat conservation agreements that once they have agreed to do certain things they will not be asked to do more in the future. For a discussion of these DOI innovations and a valuable perspective on efforts to enact takings legislation in the last Congress, see Joseph Sax, Takings Legislation: Where It Stands and What Is Next, 23 ECOLOGY L.Q. 509, 520 (1996).