Comment on Climate Exactions

• Date: 01 August 2017

8-2017 NEWS & ANALYSIS 47 ELR 10673

C O M M E N T

Comment on Climate Exactions

by Christopher V. Carlyle

Christopher V. Carlyle is a shareholder with e Carlyle Appellate Law Firm with oces in Central Florida. He practices

exclusively in the area of civil appellate litigation and presently serves on the Florida Bar’s Appellate Certication Committee.

In 2004, I was hired to work on an appellate matter

involving Coy A . Koontz, Jr.1 and the St. Johns River

Water Management District. at was the beginning

of a legal odyssey that would last for well over a decade

as t he case wound its way through Florida’s intermediate

appellate courts, the Florida Supreme Court, the United

States Supreme Court,2 and back to the Florida courts

before its ultimate resolution in 2016.

At its most basic, t he Supreme Court’s Koontz opinion

held two things. First, it applied the unconstitutional con-

ditions doctrine to monetary exactions, and held that the

conditions placed on the issuance of a permit by a munici-

pality must meet the tests set forth in Nollan and Dolan.3

Specically, those cases held that the exaction imposed

by a governmental agency must have an “essential nexu s”

with the public harm that would be created by the permit-

ted development, and that the substance of the exaction

be “roughly proportional” to the threatened harm. e

Koontz decision also held that a taking may occur when the

exaction is either a condition subsequent to the issuance of

the permit, or a condition precedent.

In t he years t hat I worked on the c ase, and for all its

complexity, the basic principal seemed fa irly straightfor-

ward and logical. When I would explain what the case was

about to t hose who asked, I would say that the real issue

was when a governmental agency is asking a landowner for

something (be it property or money) in exchange for the

issuance of a permit, the item sought (“the exaction”) must

be tied to the harm that the development would cause. Of

course, the constitutional issues involved were exceedingly

complex, though the overriding principal, or the star ting

point if you will, seemed fairly self-evident.

Authors Jay Peter Byrne and Kathr yn A. Zyla argue that

the principals of essential nexus and rough proportional-

ity may, and should, be extended to the harms caused in

the context of climate change. e rst question would be

are such “climate exactions” legal under the principals set

forth in Koontz, and it certainly seems that they are. Koontz

1. e initial permit was sought by Coy A. Koontz, Sr. in 1994. e matter

lasted so long that Mr. Koontz, Sr. passed away, and his son, Coy A. Koontz,

Jr., became the party in interest as representative of his estate.

2. Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586 (2013).

3. Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987); Dolan v. City

of Tigard, 512 U.S. 374 (1994).

did not change the tests previously set forth in Nollan and

Dolan, and those tests require a connection between the

harm caused by the development and the exaction sought

to mitigate t hat harm. It logically follows that there is no

reason to exclude a “harm” in the context of environmental

damage caused by a particular development.

e authors discuss climate exactions in two contexts,

and discuss how they mig ht occur relative to the potential

harms in those scenarios. Specically, they propose climate

exactions to counteract greenhouse gas (“GHG”) emissions

and to combat climate adaptation.

When considering climate exactions in either of these

contexts, it would seem critical that the methodology

used to determine the exaction be largely unassailable and

widely accepted. Over the years many courts have gone to

great lengths to criticize land use exactions as being arbi-

trary, and they have criticized local jurisdictions for “extort-

ing” whatever concessions t hey deem appropriate. As one

author has explained, t his “extortion narrative” has been

widely accepted as fact, a nd therefore exactions (including

those that are entirely defensible and legitimate) are viewed

through a skeptical prism.4 As the author explains, under

the extortion narrative, “local ocials act in ever-present

bad faith by misusing their regu latory powers to coerce

concessions by developers seeking land use approvals.” e

author goes on to suggest that the “extortion na rrative” is

not supported factually, though it has been used to jus-

tify the changes to exactions law with culminated in the

Koontz decision.

e roots of the extortion narrative in the Supreme

Court are found in Justice Scalia’s 1987 opinion Nollan

v. California Coastal Commission. In Nollan, he wrote that

if the condition for a permit was unrelated to the state

interest sought to be protected, then the condition would

amount to “an out-and-out plan of extortion” to seize the

landowner’s property.

is language was seized on by a judge on Florida’s Fifth

District Court of Appeal in one of the early decisions in the

Koontz litigation. In 2003, the St. Johns River Water Man-

agement District appealed an order in Koontz’s favor to

that Court. e Court, in a per curiam opinion, dismissed

the appeal for lack of jurisdiction because the order was not

4. Daniel P. Selmi, Takings and Extortion, 68 F. L. R. 323 (2016).

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.