Abstract
One of the biggest impediments to implementing sweeping environmental protections in the United States is the Fifth Amendment’s Taking Clause. Wetland protections, climate change, designation of critical habitat for endangered species and coastline protections for sea level rise all call for extensive regulations that have the potential to interfere with private property rights guaranteed under the Takings Clause. “Government could hardly go on” if it had to pay for every impact to private property rights. State and Local governments, therefore, voluntarily limit the scope of environmental regulations to avoid a massive payout. As the regulatory takings test for inverse condemnations developed over the 20th century, courts focused primarily on economic, rather than environmental impact of regulations. That is slowly changing, but antiquated rules and balancing tests lead to unpredictable and incongruent application. Under current law, if regulatory actions “go too far,” the government may have to pay just compensation to a property owner for a regulatory taking under Penn Central’s ad-hoc three-part balancing test—and if a regulation wipes out all economically viable use of property, compensation is due—frequently with inconsistent and inadequate considerations of the parallel governmental and environmental interests. Environmental considerations currently operate on the fringes of the takings clause analysis. The rules and balancing tests to determine whether a regulation triggers just compensation should be streamlined, condensed, and rewritten to provide greater clarity, predictability—and environmental protection.