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Public Policy Archives
Takings Backgrounder: Common Good and Private Property
March 1999
Issue
Takings refers to the Fifth Amendment Constitutional requirement
that the government compensate property owners when property is
taken for a public good. The current debate is whether to extend
this constitutional protection to cases when property is not taken
but when government regulation may effect property values. Proponents
claim that regulations, particularly environmental regulations,
deprive property of financial value including potential profits.
Opponents of the extension of takings to regulatory matters claim
that an extension of takings would undermine basic environmental,
public health, and worker safety and interfere with the local
zoning practices. So far, the courts with few exceptions have
been reluctant to extend takings to regulatory matters.
Status
During the last session of Congress, the House of Representatives
approved a takings bill, H.R. 1534 The Private Property Rights
Implementation Act. It sought to accomplish this goal by providing
claimants with the ability to seek relief directly through the
federal courts before fully exhausting local and state remedies.
Essentially, the legislation would have altered two current legal
procedures. The first is abstention. Currently, federal courts
can abstain from taking certain cases in deference to state courts.
Historically, federal courts have viewed takings cases as matters
subject primarily to state and local law and regulation. H.R.
1534 would have mandated federal courts to take the cases allowing
claimants essentially to bypass local and state legal proceedings.
The second related issue is “ripeness.” In reference
to takings law, the federal courts historically require claimants
to exhaust local and state regulatory procedures first before
seeking redress in federal courts. This could increase the pressure
on local zoning boards and municipalities to grant claims rather
than face costly litigation. While the House bill passed, the
Senate’s companion bill was defeated.
We can expect some new takings bills to be offered. It is more likely that there will be state takings bills offered We would appreciate it if you would inform us of any actions taken by your office relative to these bills. Please keep in touch with our office for further developments at the federal level.
USCCB Position
The USCCB seeks an approach to takings that balances private claims
and the common good of protecting the environment. The USCCB position
on takings is based on several moral principles including: (1)
the right to the ownership of private property and the promotion
of the common good are both moral goods, but private property
is a limited good conditioned by its contribution to the common
good; (2) the government has a legitimate and necessary role in
balancing the private and public dimensions of the common good,
including private property, for the benefit of the entire society;
and (3) the environment is a “common good” requiring
all parties to exercise stewardship, voluntary restraint, and
sacrifice for the preservation and promotion of the common good
that environmental protection affords.
The USCCB opposes certain takings proposals including: (1) setting a very low threshold of property devaluation for triggering compensation (most court rulings require a high threshold of property loss value before making awards); (2) inhibiting the government’s ability to enforce environmental protections and protect public health through excessive pre-impact analyses of how a particular piece of property will be effected by a regulation; and (3) favoring some property owners to the detriment of others.
The USCCB recognizes that there may be a need for regulatory relief and that the government at times may overstep its authority in regulatory enforcement. However, it urges an alternative approach and more modest reforms. The alternative approach seeks a balance among property owners. This balance can be achieved better by changing the appropriate authorizing legislation directly, e.g., revise the Clean Air Act, rather than constructing a new takings compensatory scheme. The modest reforms include a more flexible approach to accommodate the needs of small landholders, family farmers, and small businesses. Finally, there is a need to develop expedited judicial local and state procedures to make takings cases more time and cost efficient.
Strategy
The overall strategy includes:
- Working to make sure that any proposed takings legislation at either the federal or state levels meets the above criteria and seeks to balance the needs of private property owners and the needs of protecting the environment as a common good.
- Monitoring your state legislatures for local versions of takings and urge similar approaches.
For more information call Walt Grazer at (202) 541-3182 or Dan Misleh at (202) 541-3190.