Just three years ago, things looked bleak and uncertain for
those who defend health, safety and environmental safeguards
against regulatory takings challenges under the Fifth Amendment.
State and local officials had suffered a 15-year string
of losses in the U.S. Supreme Court at the hands of takings
claimants. Certain rulings raised the specter of using the
Takings Clause to strike down all kinds of land-use controls
and other measures, even where the law's impact on the claimant's
overall parcel was relatively small. Other decisions threatened
far-reaching, Lochner-esque judicial scrutiny of economic
The so-called property rights movement was getting downright
cheeky, arguing to the Supreme Court that even a 10-minute
restriction on property use is a temporary taking that requires
What a difference today! Last week, the Supreme Court took
another huge step toward restoring logic to regulatory takings
law in Lingle v. Chevron, 2005 U.S. LEXIS 4342. In
a remarkable, unanimous ruling, the court confessed error
and thoroughly repudiated the notion that the Takings Clause
authorizes the judiciary to evaluate the wisdom or efficacy
of government action.
The error originated in Agins v. City of Tiburon,
447 U.S. 255 (1980), where the court asserted that a regulation
works a taking when it fails to substantially advance a legitimate
public interest. Lingle involved a takings challenge
to a Hawaii consumer protection law designed to preserve price
competition for gasoline by protecting independent service
stations from predatory rent increases by oil companies. Chevron
objected to this rent control by invoking the Agins
"substantially advance" standard and arguing that
the Hawaii law wouldn't work. The trial court and the 9th
U.S. Circuit Court of Appeals agreed.
The Supreme Court delivered a mea culpa and unanimously
reversed. The Lingle court acknowledged that its oft-repeated
but seldom-applied "substantially advance" formulation
had become "ensconced" in Fifth Amendment jurisprudence.
But it candidly and emphatically declared that the test "has
no proper place in our takings jurisprudence." Because
the "substantially advance" language was unnecessary
to support the specific holding in Agins, the court
found no need to overrule Agins, or any other precedent
for that matter.
The court's strong denunciation of any means-end analysis
in the takings inquiry makes clear that such analyses may
not be sneaked back in through other takings tests, including
the multifactor test set forth in Penn Central Transportation
Co. v. New York City, 447 U.S. 104 (1978). In the words
of the Lingle court, asking whether a regulation is
arbitrary or ineffective "is not a valid method of discerning
whether private property has been 'taken' for purposes of
the Fifth Amendment."
The court observed that the "substantially advance"
standard has neither textual support nor doctrinal coherence,
and it emphasized the serious practical difficulties of applying
this test to land-use controls and other economic regulation,
"a task for which the courts are not well suited."
The "substantially advance" standard would require
"courts to substitute their predictive judgments for
those of elected legislatures and expert agencies." Doing
so would improperly resurrect the infamous Lochner
era, during which federal courts routinely applied heightened
scrutiny to invalidate economic regulations.
Lingle makes clear that means-end analysis of government
action should take place under the rational basis test that
governs due process analysis.
If the Lingle opinion were limited to eradicating
means-end scrutiny from regulatory takings analysis, that
by itself would be a major victory for clarity, as well as
for the primacy of our elected officials over economic policymaking.
But Lingle does far more.
The Lingle opinion provides a straightforward analytical
framework for regulatory takings that will help guide the
law for years to come. It begins by recognizing that the original
understanding of the Takings Clause did not include regulatory
takings: "Early constitutional theorists did not believe
the Takings Clause embraced regulations of property at all."
In view of this disconnect between constitutional meaning
and regulatory takings doctrine, what is the benchmark for
a regulatory taking? According to the court, the touchstone
for deciding when a regulation works a taking is "functional
equivalency." Each test of takings liability "aims
to identify regulatory actions that are functionally equivalent
to the classic taking in which government directly appropriates
private property or ousts the owner from his domain."
That's why the per se rules of takings liability are limited
to permanent occupations of land and the complete elimination
of a property's value. Each of these categories identifies
government action that is the functional equivalent of a direct
seizure of land. The Lingle court likewise stressed
that the Penn Central multifactor test also should
be driven by a functional equivalency standard, suggesting
that it requires an extremely severe economic loss and interference
with reasonable expectations.
As a bonus, the court reaffirmed that the exception to takings
liability identified in Lucas v. South Carolina Coastal
Council, 505 U.S. 1003 (1992), extends to all background
principles of property law, not just nuisance law as the claimants
bar often argues.
Finally, Lingle reaffirms the proper limits on Dolan
v. City of Tigard, 512 U.S. 374 (1994), and Nollan
v. California Coastal Commission, 483 U.S. 825 (1987).
The court observed that Dolan and Nollan involved
permit conditions that required dedications of land that would
allow permanent physical invasions by the public, and that
these physical invasions, if unilaterally imposed, would constitute
per se takings.
This discussion confirms that Dolan and Nollan
are inapplicable to impact fees and other permit conditions
that do not involve physical invasions. And the court's emphasis
of the "adjudicative" nature of the exactions in
Dolan and Nollan provides further support for
the principle that those cases do not apply to legislatively
Law review articles routinely condemn takings jurisprudence
as a "muddle," a "mess" or worse. We need
to rethink this mindset. Clarity, thy name is Lingle.
The most interesting vote in Lingle comes from Justice
Antonin Scalia. He is a staunch defender of property rights
under the Takings Clause, but also a severe critic of the
doctrine of substantive due process, a doctrine akin to the
Agins means-end inquiry. At oral argument, Scalia actively
resisted the suggestion that the court should merely redefine
the "substantially advance" formulation, and he
tellingly referred to the court's repeated articulations of
the Agins standard by asking: "So we have to eat
crow no matter what we do, right?"
Lingle follows on the heels of the court's landmark
ruling in Tahoe-Sierra v. TRPA, 535 U.S. 302 (2002).
Tahoe shed much-needed light on the law by making clear
that in evaluating whether a regulation works a taking, courts
must focus on the landowner's entire parcel of property.
For instance, restricting development on 10 acres of wetlands
in a 100-acre development site does not in any meaningful
sense constitute a taking of the property. In fact, many studies
show that such restrictions often enhance the overall value
of the land. And reciprocal restrictions on neighboring parcels
enhances everyone's value by reducing flood risks, preserving
the quality of our drinking water, and protecting our lakes,
rivers and streams.
To be sure, there is little reason to believe that the screamers
in the takings debate will acknowledge the sea change occurring
in the law. Indeed, within hours of the ruling, the national
developers lobby issued a press release hailing the decision
as "victory" for the claimants bar. If this is a
win for takings claimants, state and local officials would
happily welcome more of the same. The lobby should take a
closer look at its own amicus brief in Lingle, which
fretted that if the Agins "substantially advance"
test were eliminated, the sky would fall.
The developers lobby also claimed victory because the court
preserved the "rough proportionality" test for compelled
dedications of land set forth in Dolan, but no one
in Lingle ever disputed Dolan's validity. And
they assert Lingle suggests that Dolan applies
to impact fees, but just the opposite is true, as explained
above. The lobby's spin-meisters plainly are working overtime.
Others in the claimants bar already have suggested, bizarrely,
that Lingle might prompt the court to apply greater
scrutiny to economic regulation through the due process clause
in the manner that characterized the Lochner era. But
every member of the court is on record as condemning Lochner,
and the unanimous opinion in Lingle could not be clearer
in rejecting judicial second-guessing of the wisdom or efficacy
of government action.
With the possible exception of severely retroactive legislation,
the rational basis test will continue to govern due process
When I wrote a column last year suggesting that the 9th
Circuit ruling in Lingle was wrong and worthy of Supreme
Court review, counsel for the developers lobby nearly blew
a gasket, accusing me in a follow-up column of having "disdain"
for the Constitution and property rights. This isn't about
disdain for the Constitution or property rights. We all revere
the Constitution, and we're all property owners. It's about
not letting ideological claimants distort constitutional protections
to advance a Lochner-esque political agenda.
Thankfully, every member of the Supreme Court agrees. Unlike
the screamers, the justices honor the Constitution by viewing
its text as a serious constraint. Lingle simply restores
sanity to the law.
Timothy J. Dowling is chief counsel of Community Rights
Counsel, a Washington, D.C., public interest firm that defends
against constitutional challenges to environmental laws and
other community protections. He is the co-author of two amicus
briefs supporting Hawaii's petition for certiorari and its
merits brief in Lingle.
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