Pay Me Or Get Off My Land

While Lucas conceded the state’s right to regulate his land after he bought it, he demanded restitution. He pleaded the Fifth Amendment-its arcane “takings” clause, which prohibits government from taking private property “without just compensation.” A trial court agreed, ordering South Carolina to pay him $1.2 million. The state then appealed and won, arguing that a property owner has no right to harm his land. This week, the U.S. Supreme Court hears the case. The issue: does the takings clause, long invoked in building highways and airports, extend to environmental restrictions that fall short of actual property seizure? (The justices have already heard two similar cases this term.) Who should take the financial hit-society, through the tax rolls, or individual landowners?

Lucas’s appeal is the flash point in a national clash pitting environmentalists and preservationists against a grass-roots coalition of ranchers, miners, loggers and developers. It is a war of both spiritual principles and economic principal that is being fought before local regulators, federal agencies, Congress and the courts. But what the justices do is paramount: a decision may effectively gut a generation of land regulation, as well as 50 years of judicial acquiescence to it. A victory for Lucas would signal “open season on environmental laws,” says Albert Meyerhoff of the Natural Resources Defense Council. In jeopardy would be laws protecting wetlands, coastlines, endangered wildlife, nature habitats and historic districts. Virtually any restraints on private property-from housing codes to zoning requirements-would be suspect, since they encumber free use. States, of course, could compensate for the land they regulate, but that would cost governments billions in ransom. “It’s the scariest thing coming down the pike for anyone who cares about the environment,” says Republican Sen. John Chafee of Rhode Island.

Dormant for more than 50 years, the property-rights movement was reborn during the conservative renaissance of the Reagan years. Richard Epstein, a law professor at the University of Chicago, wrote a book on takings that’s become a manifesto. Decrying the “inexorable increase in regulation since the New Deal,” Epstein argues that property rights can be limited only for a price. Epstein coauthored one of the many briefs submitted on Lucas’s side.

Armed with Epstein’s doctrinal fodder and emboldened by the conservative tilt of the federal judiciary, the Property Firsters have a record number of cases pending in lower courts. They’re challenging governmental authority to force toxic-waste cleanups, restrict grazing and ration water. Congress, too, is considering legislation that would make executive agencies weigh the impact of regulations on property owners. “If government can’t afford it,” says Clint Bolick, who co-wrote the Epstein brief, “then government shouldn’t do it.”

The Supreme Court last visited property rights in 1987. Back then, the justices ruled 5-4 that states could, without compensation, limit underground mining in order to protect the surface; but only three members of that majority remain on the bench. And in the new world of judicial activism-right-wing style-led by Antonin Scalia, precedent means little more than a misspelling of the fellow living at the White House. “I regard this case as essentially a no-brainer,” Epstein says. The three newest justices-Anthony Kennedy, David Souter and Clarence Thomas-are all likely to read the takings clause broadly. Thomas, in particular, has expressed views on economic rights that seem to make him sympathetic to Lucas’s plight.

Not even the most diehard conservatives expect the justices to return to the so-called Lochner Era (19001937), when the court repeatedly favored economic and property rights over other social interests. It was during this period that the court struck down state laws on minimum wages and maximum hours. In the early years of the New Deal, it was the high court that blocked reform by invalidating legislation passed by Congress; only after FDR threatened to pack the court did the justices change course. In the current regulatory regime, most scholars agree that the court would never deem the Clean Water Act or Clean Air Act as government takings entitling polluters to compensation.

For David Lucas, though, the pro-property movement can’t go far enough. He’s a lifelong Republican who derides the “professional activists” claiming to speak for the environment-and depriving him of his new home. “I hope this is the end of the wild-eyed tree huggers,” he says. In the new order, if you want to love a tree, it would be best to buy one.

title: “Pay Me Or Get Off My Land” ShowToc: true date: “2022-12-20” author: “Rebecca Odaniel”

While Lucas conceded the state’s right to regulate his land after he bought it, he demanded restitution. He pleaded the Fifth Amendment-its arcane “takings” clause, which prohibits government from taking private property “without just compensation.” A trial court agreed, ordering South Carolina to pay him $1.2 million. The state then appealed and won, arguing that a property owner has no right to harm his land. This week, the U.S. Supreme Court hears the case. The issue: does the takings clause, long invoked in building highways and airports, extend to environmental restrictions that fall short of actual property seizure? (The justices have already heard two similar cases this term.) Who should take the financial hit-society, through the tax rolls, or individual landowners?

Lucas’s appeal is the flash point in a national clash pitting environmentalists and preservationists against a grass-roots coalition of ranchers, miners, loggers and developers. It is a war of both spiritual principles and economic principal that is being fought before local regulators, federal agencies, Congress and the courts. But what the justices do is paramount: a decision may effectively gut a generation of land regulation, as well as 50 years of judicial acquiescence to it. A victory for Lucas would signal “open season on environmental laws,” says Albert Meyerhoff of the Natural Resources Defense Council. In jeopardy would be laws protecting wetlands, coastlines, endangered wildlife, nature habitats and historic districts. Virtually any restraints on private property-from housing codes to zoning requirements-would be suspect, since they encumber free use. States, of course, could compensate for the land they regulate, but that would cost governments billions in ransom. “It’s the scariest thing coming down the pike for anyone who cares about the environment,” says Republican Sen. John Chafee of Rhode Island.

Dormant for more than 50 years, the property-rights movement was reborn during the conservative renaissance of the Reagan years. Richard Epstein, a law professor at the University of Chicago, wrote a book on takings that’s become a manifesto. Decrying the “inexorable increase in regulation since the New Deal,” Epstein argues that property rights can be limited only for a price. Epstein coauthored one of the many briefs submitted on Lucas’s side.

Armed with Epstein’s doctrinal fodder and emboldened by the conservative tilt of the federal judiciary, the Property Firsters have a record number of cases pending in lower courts. They’re challenging governmental authority to force toxic-waste cleanups, restrict grazing and ration water. Congress, too, is considering legislation that would make executive agencies weigh the impact of regulations on property owners. “If government can’t afford it,” says Clint Bolick, who co-wrote the Epstein brief, “then government shouldn’t do it.”

The Supreme Court last visited property rights in 1987. Back then, the justices ruled 5-4 that states could, without compensation, limit underground mining in order to protect the surface; but only three members of that majority remain on the bench. And in the new world of judicial activism-right-wing style-led by Antonin Scalia, precedent means little more than a misspelling of the fellow living at the White House. “I regard this case as essentially a no-brainer,” Epstein says. The three newest justices-Anthony Kennedy, David Souter and Clarence Thomas-are all likely to read the takings clause broadly. Thomas, in particular, has expressed views on economic rights that seem to make him sympathetic to Lucas’s plight.

Not even the most diehard conservatives expect the justices to return to the so-called Lochner Era (19001937), when the court repeatedly favored economic and property rights over other social interests. It was during this period that the court struck down state laws on minimum wages and maximum hours. In the early years of the New Deal, it was the high court that blocked reform by invalidating legislation passed by Congress; only after FDR threatened to pack the court did the justices change course. In the current regulatory regime, most scholars agree that the court would never deem the Clean Water Act or Clean Air Act as government takings entitling polluters to compensation.

For David Lucas, though, the pro-property movement can’t go far enough. He’s a lifelong Republican who derides the “professional activists” claiming to speak for the environment-and depriving him of his new home. “I hope this is the end of the wild-eyed tree huggers,” he says. In the new order, if you want to love a tree, it would be best to buy one.