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 Dan Misleh at (202) 541-3190