Chapter Five: The Regulatory Takings Battleground Page 331
er’s eorts to secure site plan approval for a beachfront residential development (county ocials
imposed open-space requirements and were concerned about the impact on the critical habitat of
an endangered buttery). is time, there was no need to expand the substantive reach of regu-
latory takings; instead, the Court permitted the extremely puzzling questions of “economically
viable use” and “substantially advancing a legitimate public purpose” to be submitted to a jury.
en, in Palazzolo v. Rhode Island, 533 U.S. 606
6, 626-30 (2001
), we learned that even land-
owners who maintained a “token interest” could claim a Lucas-type total deprivation. Morever,
we were told that, even if those landowners acquired their ownership interest in the property with
notice of existing restrictions, they were not necessarily foreclosed from bringing a regulatory tak-
ings lawsuit challenging those very regulations. At risk in Palazzolo were state controls over lling
is litany of decisions demonstrates quite clearly the hazards of implementing and enforc-
ing state and local environmental controls aecting the use of land. Although not all nonfederal
regulation has been struck down in recent years,16 a majority of the Rehnquist Court viewed such
restrictions as the Achilles’ heel of property regulation generally, and the result was the dramatic
expansion of the judiciary’s power to strike down a wide and increasing array of regulatory work
product by elected and administrative ocials.
Given the eagerness with which some disgruntled landowners pursue regulatory takings chal-
lenges to environmentally avored land use restrictions, often with the assistance of public interest
lawyers from groups such as the Institute for Justice and the Pacic Legal Foundation,17 local gov-
ernments should be especially careful when creating and implementing new land use controls that
threaten to reduce the existing and potential value of real property. One strategy that local ocials
should consider pursuing, a strategy borrowed from a key federal environmental law statute, is to
“stop and think” before regulating.
A few decades ago, environmental law was revolutionized by a seemingly simple statute that
appeared to require very little of federal agencies—the National Environmental Policy Act (NEPA)
of 1969.18 In the hands of activist judges, led by the legendary J. Skelley Wright, NEPA quickly
shed its “paper tiger” image.19 By the mid-1970s, NEPA was widely understood to mandate federal
agencies to “stop and think” carefully and expansively about the implications of “major Federal
actions signicantly aecting the quality of the human environment,”20 and, perhaps, to engage
in time- and resource-consuming studies of those wide-ranging implications. As a result, the envi-
ronmental impact statement process triggered by NEPA, and by state versions in several jurisdic-
tions, has become a focal point for active public participation and, at times, lawsuits orchestrated
by federal, state, and local nongovernmental organizations.
e process of making and enforcing local environmental law could benet from the adoption
of four NEPA elements. First, at the proposal stage for a new environmental regulation device or
program, local regulators could do an initial analysis concerning whether the implementation of
that device or program would “signicantly aect the market value of private property within the
16. See, e.g.
, Tahoe-Sierra Pr
eservation Council v. T
ahoe Reg’l Planning Agency, 535 U.S. 302
(2002) (holding that devel-
opment moratoria totaling 30 months did not eect a per se regulatory taking).
17. In fact, the Pacic Legal Foundation led amicus or party briefs in all of the major cases included in this chapter.
e Institute for Justice led amicus briefs, carrying Professor Richard Epstein’s name, in Tahoe-Sierra, Palazzolo, Del
Monte Dunes, Dolan, and Lucas.
18. NEPA §§2-209, 42 U.S.C. §§4321-4370d.
19. Calvert Clis’ Coordinating Comm. v. Atomic Energy Comm’n, 449 F.2d 1109
, 1114 (D.C. Cir. 1971) (Judge J.
Skelly Wright, writing for the court, noted that “Congress did not intend the Act to be a paper tiger”).
20. NEPA §102(2)(C), 42 U.S.C. §4332(2)(C).