Tag: constitutional law

Arkansas Game and Fish Commission v. United States

By David Baake

The Fifth Amendment’s Takings Clause provides that private property shall not be “taken for public use, without just compensation.” For most of American history, the Supreme Court construed this clause narrowly, requiring the government to pay compensation only where it permanently appropriated or destroyed property. During the twentieth century, however, the Court began to embrace a significantly broader interpretation of the Takings Clause. In 1922, the Court introduced the concept of regulatory takings, holding in Pennsylvania Coal Company v. Mahon that the government was required to pay compensation if its laws or regulations went “too far” in redefining the range of interests included in the ownership of property. A series of cases during the World War II era established that the government was required to retroactively compensate a property owner for a temporary physical taking. And in 1987, the Court combined these two innovations, holding in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles that the government was required to retroactively compensate a property owner for a temporary regulatory taking.

 

Last Term, in Arkansas Game and Fish Commission v. United States, the Supreme Court was required to consider the continuing validity of this last development. The Court was confronted with two conflicting precedents: First English, which established the general availability of retroactive compensation for temporary regulatory takings, and Sanguinetti v. United States, a 1924 case holding that the Takings Clause did not require compensation for government-induced flooding unless the flooding constituted a “permanent invasion of the land.” The Court reaffirmed First English while rejecting Sanguinetti, holding by a vote of 8-0 that the federal government was required to retroactively compensate a landowner whose property it temporarily took by flooding.
 
In this Comment, I argue that the Arkansas Game and Fish Court erred in applying First English without first addressing its continuing validity. Even assuming that First English was correct when it was decided in 1987 — something that is far from clear — it is doubtful that it remains so today. Since First English was decided, the Court has radically reduced the availability of implied damages relief for other constitutional violations. I argue that there is no principled basis for treating temporary regulatory takings differently from other constitutional violations; hence, limiting the availability of implied damages relief under First English is necessary to achieve doctrinal consistency. Further, limiting First English is desirable from a policy perspective, as this would return the question of compensation for temporary regulatory takings to the political process, allowing federal, state, and local governments to balance the public’s interest in regulation with the interests of individual property owners on a case-by-case basis.
 

Cite as: David Baake, Arkansas Game and Fish Commission v. United States, 37 Harv. Envtl. L. Rev. 577 (2013).

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Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?

By David Baake

Since the New Deal era, the Supreme Court has interpreted the Spending Clause to permit Congress to use conditional grants to encourage state governments to take action that Congress could not require them to take. In National Federation of Independent Business v. Sebelius, the Supreme Court unexpectedly restricted this power, holding for the first time ever that a conditional grant was unconstitutionally coercive because the amount of money at stake was so large that the states had no real choice but to comply with the attached conditions. This remarkable development in Spending Clause jurisprudence will likely embolden states to challenge the constitutionality of a wide variety of statutes, including Section 179(b)(1) (“Section 179”) of the Clean Air Act, which empowers the Environmental Protection Agency to prohibit, with limited exceptions, the distribution of federal highway money to states that fail to submit adequate State Implementation Plans (SIPs).

In this article, I assess the likelihood that a Spending Clause challenge to Section 179 would succeed, post-Sebelius. In Part I of this Article, I briefly discuss the Sebelius Court’s Spending Clause holding. In Part II, I argue that Section 179 should survive a facial constitutional challenge after Sebelius because, at least where applied to SIP plans for pollutants emitted by mobile sources, the provision can be construed as an attempt to restrict the use of federal funds to projects that advance the general welfare, rather than as an attempt to coerce the states into adopting particular policies. Finally, in Part III, I argue that Section 179 should survive an as-applied constitutional challenge, even if it is applied to SIP plans for pollutants that are not emitted by mobile sources. I argue that the decision to enact a SIP “remains the prerogative of the States not merely in theory but in fact,” because (1) a state that does not wish to promulgate a SIP can petition EPA to promulgate a Federal Implementation Plan (FIP) and thereby halt the sanctions clock; and (2) the amount of money at stake will likely be significantly less than the amount at stake in Sebelius.

Cite as: David Baake, Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?, 37 Harv. Envtl. L. Rev. F. 1 (2012).

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Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause

By Blake Hudson

Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeals have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable — key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized commons resources,” as fundamentally meeting the third test for determining the validity of federal legislation under the Commerce Clause — the “substantial effects” test. Using commons analysis to meet the substantial effects test has the potential to provide a unified theory of federal environmental regulatory authority under the Commerce Clause, a clearer statement of the jurisprudential approach in environmental cases, and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also assists in answering persistent questions arising in Commerce Clause cases, including when the “aggregation principle” may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and what the proper scope of federal Commerce Clause authority is given constitutional federalism limitations.

Cite as: Blake Hudson, Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause, 35 Harv. Envtl. L. Rev. 375 (2011).

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Comment: Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection

By Jared Policicchio

After five years of relative quiet, federal property law doctrine is once again the site of renewed controversy. Last Term, the Supreme Court unanimously rejected a Fifth Amendment takings claim alleged to have occurred when Florida took ownership of newly submerged land after a county beach renourishment project. Importantly, the decision marked the Court’s entrance into a jurisprudential debate over the existence of judicial takings. In doing so, the Court opened up the possibility of a future decision constitutionalizing judicial takings, an arguably unnecessary addition to Takings Clause jurisprudence and possible detriment to the evolution of environmentally- favorable property law.

Cite as: Jared Policicchio, Comment, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 35 Harv. Envtl. L. Rev. 541 (2011).

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