EMERGENCY TAKINGS

• Author: lee, brian angelo

Introduction

Takings law has long contained a puzzle. The Fifth Amendment to the U.S. Constitution explicitly requires the government to compensate owners of property that the government "takes" for public use.1 Ordinarily this requirement applies equally whether the government confiscates the property through eminent domain or destroys the property without taking possession of it.2 This consistent requirement to pay compensation is unsurprising, since the owner's loss is the same whether the government destroys the property or puts it to some other use.3 Even if a crisis gives rise to extraordinary circumstances, the government still owes compensation to owners of private property that the government confiscated and used to address the emergency.4 One naturally would expect, therefore, that the same rule would apply when the government destroys private property to address an emergency. Remarkably, however, courts have repeatedly held that if the government responds to an emergency by destroying private property altogether, instead of merely confiscating and using it, then the owner ceases to be entitled to any compensation.5 Although the government has directly inflicted a potentially enormous loss on the innocent and unfortunate property owner in order to benefit others in the community, the government owes the owner nothing. Many courts at many different levels have affirmed this exemption from paying compensation, which, for convenience, one might call the "noncompensation principle."6 Indeed, courts and scholars have said that the noncompensation principle has been well-established law for centuries.7

Nevertheless, on its face, this noncompensation principle is quite puzzling. From the property owner's perspective, there is no significant difference between the government's confiscating the property to use it and the government's destroying the property. In both cases, the effect on the property owner is the same-she is deprived of the property that she once had. And yet despite this fundamental equivalence, in one case the government must compensate her for her loss, and in the other it need not.

Others have recognized the puzzling nature of this principle. For example, the authors of the Second Restatement of Torts, while acknowledging the rule's existence, assert that "the moral obligation to compensate the person whose property has been damaged or destroyed for the public good is obviously very great, and is of the kind which should be recognized by the law."8 Some academic commenters have expressed similar sentiments.9

These scattered criticisms, however, have not offered any systematic analysis of the justifications that have been offered for the noncompensation principle, nor made any attempt to explain why courts so often have endorsed that principle despite its apparent incompatibility with other key features of takings law. These deficiencies, in turn, have prevented existing literature from being able to offer a rigorously grounded foundation for an alternative approach.

This gap in the current understanding of takings law is particularly unfortunate in light of the noncompensation principle's influence on other contested areas of property law, especially regulatory takings. For example, both the majority and a dissent in Lucas v. South Carolina Coastal Council, a seminal regulatory-takings case, cite emergency-destruction cases in support of their respective analyses.10 Moreover, the principle's potential practical implications are growing. Today the scope of government emergency destruction has expanded beyond classic paradigms of urban fires and wartime emergencies to include activities as diverse as law enforcement, storm and flood mitigation, and disease eradication.11 (This last category's significance may continue to grow as governments around the world increasingly seek to avert deadly global pandemics by destroying potential vectors, such as poultry and livestock, that may incubate and transmit new infectious diseases.12)

Hence, a comprehensive analysis of the government's obligations with respect to emergency takings is long overdue. This Article aims to fill this gap, both by providing a detailed critical examination of the main arguments that courts and commentators have offered over the past two centuries in defense of the noncompensation principle and by developing an account of what the correct approach should be.

Accomplishing these tasks, this Article argues, requires recognizing three crucial distinctions that both courts and commentators have overlooked.

First, this Article distinguishes between the different roles that compensation can have in any given interaction. Discussions of emergency takings routinely assume that the purpose of requiring the government to pay compensation for takings is to serve as restitution for the wrong done to owners by inflicting a property loss on them.13 Under this assumption, establishing that destruction in emergencies is not wrongful would be sufficient to show that no compensation is owed. This Article argues, however, that rectifying wrongs is only one role that compensation may play. The role that compensation actually does play in takings generally, and in emergency takings specifically, is importantly different.

The second pivotal distinction is between two different types of "necessity." Defenses of denying compensation to owners of destroyed property commonly rely heavily on assertions that the destruction was "necessary" under the circumstances. The underlying assumption is that the presence of "necessity" eliminates any obligation to compensate those who suffered the costs of that destruction.14 Such arguments overlook a crucial distinction between two different types of necessity-"destruction necessity" and "noncompensation necessity." While the former type of necessity is relevant for determining whether destroying property without the owner's consent may be permissible, only the latter type is relevant to answering the separate question of whether compensation is owed for that destruction. This Article argues that recognizing the distinction between these two forms of "necessity" provides the key to understanding two pieces of the emergency-takings puzzle: it unlocks the ability to understand both how the noncompensation principle diverges from the correct approach to emergency-takings compensation and why, nevertheless, courts and commentators have so often found that principle appealing.

When both destruction necessity and noncompensation necessity are present, the third overlooked distinction becomes relevant. A common assumption in many areas of law, including discussions of emergency destruction, is that the amount of compensation owed in any given case must be either full compensation (if the plaintiff prevails) or zero compensation (if the defendant prevails). Between those two extremes, however, lies an entire spectrum of potential intermediate amounts of compensation, and this Article argues that when noncompensation necessity is present in the aftermath of an emergency, the proper amount of compensation may be neither full compensation nor zero compensation, but rather partial compensation.

The Article proceeds as follows. Part I briefly describes some prominent examples of emergency destruction to provide a concrete foundation for the subsequent discussion. Part II introduces the three pivotal distinctions that courts and commentators have commonly overlooked and explains how they interact to provide a general theory of compensation for emergency destruction.

Part III builds on the discussion in Part II to provide a systematic examination and critique of the leading attempted justifications of the noncompensation principle. The Part sorts these justifications thematically into four categories: The first category focuses on questions of efficient incentives. The second focuses on attributions of responsibility for the destruction-specifically focusing on attempts to remove responsibility from the government by asserting either that the threatening condition itself was really responsible for the destruction or that the destroyed property was analogous to a nuisance and therefore could be abated without compensation. The third category asserts that providing monetary compensation would be superfluous for one of three reasons: (1) the owner of the destroyed property has already received sufficient nonmonetary in-kind compensation, (2) private insurance is an adequate substitute for government-provided compensation, or (3) the risk of opportunism in emergency-destruction situations is sufficiently low that requiring the government to pay compensation is unnecessary. The fourth category of justifications of the noncompensation principle asserts that emergency destruction is fundamentally distinct from eminent domain, and thus immune to the latter's constitutional obligation to pay compensation. This distinction rests on the grounds that either the government-ordered destruction was no different from what private individuals have a natural right to do, or that-in the case of wartime emergency destruction-the destruction was similar to ordinary "battle damage," which is not compensable. Drawing on the three distinctions identified in Part II, this Part shows why each of these traditional justifications is largely unpersuasive.

Part IV then addresses the question of why, nevertheless, courts have so often found the noncompensation principle attractive. This Part shows how the distinctions drawn in Part II illuminate the judicial history, revealing both that it is less definitive than commonly asserted and that it in fact supports the partial-compensation approach introduced in Part II.

1. Destruction in Action

   To set the stage for the discussion to follow, a few brief examples of emergency-destruction situations in practice may be helpful.

   1. Conflagrations

      Historically, many seminal discussions of the...