TITLE

Background Principles and the Rule of Law: Fifteen Years after Lucas

AUTHOR(S)
Huffman, James L.
PUB. DATE
February 2008
SOURCE
Ecology Law Quarterly;2008, Vol. 35 Issue 1, p1
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
Property right advocates welcomed the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Council. Justice Scalia's opinion for the Court established a categorical taking when all economic value is lost as a result of regulation. Advocates of unconstrained environmental and land use regulation were quick to suggest (wishfully) that Lucas's impacts would be minimal since most regulations do not destroy all economic value. Fifteen years later, some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold at its end. This newly optimistic understanding of Lucas stems from Justice Scalia's reference to "background principles" of common law nuisance and property. These background principles serve not only as an exception in categorical takings, but also as an affirmative defense that immunizes government from virtually all takings claims. In this Article, I argue that there is nothing extraordinary in Justice Scalia's statement that background principles of the common law are relevant to the definition of property rights. What is extraordinary is the claim that, consistent with the historic evolution of the common law, these principles are almost infinitely malleable in the hands of courts and legislatures. It is this claim that creates the deception of a pot of gold at the end of the Lucas rainbow, and it reflects a misunderstanding of the common law process, a distortion of Justice Scalia's meaning in Lucas, and disregard for the requirements of the Fifth Amendment takings clause.
ACCESSION #
33720666

 

Related Articles

  • ATTACKING BANANAS AND DEFENDING ENVIRONMENTAL COMMON LAW. Antolini, Denise // Case Western Reserve Law Review;Spring2008, Vol. 58 Issue 3, p663 

    The article discusses the significant role of common law in providing solutions to environmental problems in the U.S. It examines the potential of common law to replace statutory approaches in solving various environmental issues that exist across the country. Moreover, it explores criticism on...

  • A SUPREMELY GOOD REASON TO SMILE.  // Onearth;Summer2007, Vol. 29 Issue 2, p43 

    The article reports that on April 2, 2007, the U.S. Supreme Court rejected the Bush Administration's claim that the Environmental Protection Agency (EPA) has no authority to regulate carbon dioxide under the Clean Air Act. The court ruled that the greenhouse gas is an air pollutant like any...

  • THE NINTH CIRCUIT'S DIFFERENTIAL APPROACH TO ALTERNATIVES ANALYSIS IN NEPA CASES: WESTLANDS WATER DISTRICT V. UNITED STATES DEPARTMENT OF INTERIOR. Baker-Jud, Shems // Environmental Law (00462276);Summer2005, Vol. 35 Issue 3, p583 

    In July 2004, the Ninth Circuit decided Westlands Water District v. United States Department of Interior, upholding an Environmental Impact Statement (ElS) which gave serious consideration only to alternatives that increased water flow in the Trinity River, effectively reducing the amount of...

  • Whither Superfund? Is Superfund Withering? Probst, Kathete N. // Environmental Forum;Jul/Aug2005, Vol. 22 Issue 4, p21 

    The article presents information about the role of litigation in Superfund law in the U.S. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) CERCLA gives Environmental Protection Agency (EPA) two ways to assure clean-up. Liability is retroactive, strict and joint...

  • ENVIRONMENTAL LAW.  // International Law Update;Jun2005, Vol. 11, p86 

    This article focuses on the U.S. lawsuit ARC Ecology v. U. S. Department of Air Force. In dispute over duty of the U.S. to carry out environmental clean-up of its abandoned U.S. bases in Philippines, Ninth Circuit holds that the Comprehensive Environmental Response, Compensation, and Liability...

  • Environmental Law as a Scientific and Educational Discipline. Nikolić, Dušan // Proceedings of Novi Sad Faculty of Law;2011, Vol. 45 Issue 3, p299 

    In this work, basic characteristics of environmental law as a scientific and educational discipline were presented. In the first part, author pointed out the dilemmas which exist in domestic, as well as in foreign literature, regarding its name, notion and legal nature. It is about a new,...

  • Common but Differentiated Responsibilities: Adjusting the "Developing" / "Developed" Dichotomy in International Environmental Law. Boyte, Rachel // New Zealand Journal of Environmental Law;2010, Vol. 14, p63 

    The principle of common but differentiated responsibilities addresses different historical and current contributions of states to global environmental problems, along with their capacity to mitigate these, while recognizing that all nations have a responsibility to provide for the “common...

  • Navajo Nation vs. U.S. Forest Service.  // Native American Law Digest;Nov/Dec2007, Vol. 17 Issue 11/12, p23 

    The article reports on the resolution of the legal case of the Navajo Nation vs. the U.S. Forest Service. In the case the Navajo and other tribes had argued that the expansion of a ski area which had been approved by the forest service violated the Religious Freedom Restoration Act, the National...

  • Sierra Club v. EPA, 536 F.3d 673 (D.C. Cir. 2008). Walley Jr., E. Kenneth // Tulane Environmental Law Journal;Dec2008, Vol. 22 Issue 1, p175 

    The article discusses the emission limits and monitoring requirements under the permit program of Title V of the Clean Air Act (CAA) in the U.S. It mentions that the program is subject to approval of the Environmental Protection Agency (EPA) wherein they would ensure strict compliance rather...

Share

Read the Article

Courtesy of VIRGINIA BEACH PUBLIC LIBRARY AND SYSTEM

Sign out of this library

Other Topics