Federal Circuit's Economic Failings Undo the Penn Central Test
Date | 01 September 2010 |
Author |
40 ELR 10914 ENVIRONMENTAL LAW REPORTER 9-2010
Federal Circuit’s
Economic Failings
Undo the Penn
Central Test
by William W. Wade, Ph.D.
William W. Wade is a resource economist with the rm
Energy and Water Economics, Columbia, Tennessee.
Editors’ Summary
Faulty understanding of standard economic and nan-
cial analysis within regulatory takings cases continues
to set this jurisprudence apart from standard tort cases,
where state of the art economic methods typically are
applied within both liability and damages phases of
the trial. Clear examples of economic nonsense can be
found in three recent decisions by the U.S. Court of
Appeals for the Federal Circuit that ignored competent
economic evidence within the Penn Central test to over-
turn temporary takings decisions. e Federal Circuit’s
ip-op between its 2003 decision in Cienega Garden
VIII and its more recent decisions in Cienega Gardens X,
Rose Acre Farms, and CCA reveals both misapplication
of “parcel as a temporal whole” from Tahoe Sierra, a
Lucas case, to Penn Central cases and faulty use of valu-
ation methods appropriate for real property to evaluate
the severity of economic impact of temporary business
income losses.Confused legal theories cannot be shoe-
horned into standard economic methods essential to
evaluate the Penn Central test.
I. Progeny of Cienega X Supplant Standard
Economic Methods With Confused Legal
Theories
irty years a fter Justice William J. Brennan’s decision in
Penn Central,1 the federal circuit created an economic tsemi-
sht of the Penn Central test in its Cienega X decision.2 Prog-
eny of Cienega X demonstrate that faulty legal theories of
economics developed in Cienega X should not displace well-
established economic theories of measuring and benchmark-
ing nancial losses. is Article takes a meta-look at recent
federal circuit and federal claims court decisions to reveal
that confused legal theories cannot be shoehorned into stan-
dard economic methods essential to evaluate the Penn Cen-
tral test.3
Progeny of Cienega X at issue are:
(Rose Acre Farms
VI)4;
5; and
.6
An earlier Article by the author details the economic fail-
ings of Cienega X7; a recent Article explains the deciencies of
Rose Acre Farms’ analytic approaches to Cienega X’s Penn Cen-
tral test.8 Reliance on diminution in value of property in lieu
of loss of income led each of the federal circuit decisions astray.
Not surprisingly, CCA Associates’ post-trial memoran-
dum put the court on notice that they were playing under
protest of the Cienega X Penn Central rules.
1. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 8 ELR 20528 (1978).
2. Cienega Gardens v. United States (Cienega X), 503 F.3d 1266 (Fed. Cir. 2007).
“Tsemisht,” or “simist,” is Yiddish for confused, befuddled, mixed up.
3. Penn Cent., 438 U.S. at 124. To establish a regulatory taking, a plainti must
provide evidence regarding: (1)the regulation’s economic impact on the claim-
ant; (2)the extent to which the regulation has interfered with distinct invest-
ment-backed expectations (DIBE); and (3) the character of the government’s
actions. e court must then balance these factors in some manner. Id.
(2010).
5. 91 Fed. Cl. 580 (2010), appeal docketed (Fed. Cir. July 19, 2010).
6. 284 Fed. Appx. 810, 811 (Fed. Cir. 2008).
7. William W. Wade,
Approaches to the Penn Central Test in Temporary Takings, 38 ELR 10486 (July
2008).
8. See William W. Wade, Penn Central’s Ad Hocery Yields
Inconsistent Takings Decisions, 42 U. L. (forthcoming 2010).
Rhode Island, June 2004. He has testied on economic elements
the author’s.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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