The Fifth Amendment to the U.S. Constitution provides: "nor shall private property be taken for public use without just compensation." This clause is usually referred to as the "Takings Clause" although some refer to it as the "Eminent Domain Clause."
The primary issues upon which we will focus are (1) what constitutes a "taking" of private property and (2) when is a taking for a "public use."
Takings that don't satisfy the "public use" requirement are strictly prohibited. In other words, the government may not take private property unless it is for a "public use." Takings that satisfy the public use requirement are permitted so long as the government pays the property owner "just compensation" (i.e., the FMV of the property that has been taken). As one Hornbook puts it: if the government takes property it must "pay the market value of the owner's loss, as fixed by a jury in a condemnation action."
Take a look at page 791 of the Casebook, which deals with regulatory Takings (i.e. regulations that reduce the value of private property). The issue is whether a confiscatory regulation is a "taking" that requires the government to pay just compensation to the private landowner. The authors of the Casebook say this:
"Obviously, a broad interpretation of the takings clause would impose substantial financial burdens on the attempt of government to regulate land use."
Is this true? Or is the real issue who must bear the financial cost of a regulatory burden, the government (and thus all of us who benefit from the regulatory program) or a few private landowners? The cost is there regardless of who pays. The issue is who should bear the cost of a program that benefits the public.
Many advocates of extensive regulations designed to protect the environment are opposed to interpreting the Takings Clause as protecting property owners against “regulatory” takings.
Why do you think they feel this way?
Does the Takings Clause prohibit environmental regulations?
Or does it merely require government to pay fair value for regulations deemed to be a taking.
Notice that the Takings Clause
does not create these costs – it simply spreads them to the public that benefits from the regulatory taking.
