The Yale Law Journal


New Actions or New Arguments over Regulatory Takings?

16 Sep 2007

In the land-use arena, one of the most significant events of the last two decades has been the rise and impact of the so-called private property rights movement. The movement was formally born in 1988 with a focus on western resources and labeled itself as the wise-use movement. However its intellectual antecedents originate at least with the rise of the modern environmental movement. Today it is a national coalition targeting land-use and environmental laws and policies, such as those for endangered species protection, smart growth, and farmland and wetland protection. This coalition argues that restricting private property is inefficient, ineffective, and un-American.

The property rights movement has pursued a multilevel strategy to achieve its objectives—judicial, legislative, policy, and public relations. In its early years, its strategy was focused at the national level, exploring what could be accomplished via Executive Orders issued by the President, and through legislation proposed in the U.S. Congress. But much to its frustration, its activities had little effect. Thus it shifted toward the states, and here it found fertile ground for its ideas.

Since 1991, every state in the United States has considered state-based legislation in support of the policy position of the property rights movement, and twenty-seven states have passed such legislation. These states are on both sides of the Mississippi River; they are “red” and “blue” states and extend from Maine to Washington, the Dakotas to Texas, with eleven located east of the Mississippi.

The property rights movement has offered three basic types of state-based laws. Compensation and taking-impact-assessment laws are the majority of the laws passed by the states. Most of these laws were passed in the period 1991—1995, and represented the first wave of state-based laws. In the mid-1990s, the property rights movement promoted a form of conflict resolution law as a second-wave approach. However, these laws did not yield the results that the movement had expected.

In addition to a state-based strategy, the property rights movement also pursued a county-based local strategy. In the American West, the movement promoted “culture and custom” ordinances that asserted the county’s primacy for all aspects of land use and environmental policy, even when county-based policy conflicted with state or federal policy. Though one state court has found this approach to be illegal, over three hundred counties have actively considered the approach, scores of counties as far east as Michigan have adopted it, and actions based on it became prominent in national media coverage of the movement in the mid-1990s.

But by the late 1990s the property rights movement had come to a policy standstill. They had been effective in passing state-based laws, promoting county-based laws and garnering significant media attention to their cause, but they had been ineffective in changing the fundamental way government acted upon land.

With the 2000 election the movement had an opportunity to revise its strategy. It decided to try again for nationally based action. Initial patterns of appointments and non-appointments in the Bush Administration suggested it was going to have a great deal of influence. However, several factors—including the systemic impact of 9/11 on Administration priorities and congressional realignments—forced the movement back to a state-based strategy.

This is where Hannah Jacobs’s note picks up this story. The note proceeds in two parts. Part I provides details on the 2006 regulatory takings initiatives—how they originated, where they were proposed, what the outcomes of the votes were, how failed efforts might evolve in the next election cycle, etc. This part is well conceptualized, covers all the appropriate ground, and identifies many of the key issues attending these efforts.

However, this is the groundwork for identifying ways to balance the competing forces doing battle over regulatory takings. And here Jacobs falls prey to a conceptual flaw—that the competing forces are amenable to the very idea of balance. They are not. Regulatory takings proponents are not interested in constructive dialogue about nuances within the current regulatory system. Rather they are interested in a wholesale attack on that system because they consider its very foundations illegitimate and unnecessary. What about regulations’ defenders? It is likely that they are amenable to a dialogue over balance. But as they are, it has to be in a context where those across the table actually want to listen to opposing views, and creatively (not unilaterally) develop solutions. This does not seem to be the case with regulatory takings’ advocates.

As Jacobs details, the proposed regulatory takings provisions have a number of potential “negative” impacts—stifling government regulation, being unsuitable to class actions for compensation, confusing the appropriate basis for compensation, and creating burdensome administrative costs and tasks. Jacobs writes as if these outcomes were surprising. But they are not. In fact, these are the outcomes the initiatives are designed to achieve. These initiatives are engineered specifically to gum up the works of governmentally based land-use action. Why? Because at base the regulatory takings movement is not about tweaking government regulations that “go[] too far” but is instead a frontal assault on the rights of the community vis-à-vis the rights of the individual. The rationale for this is simple. According to Richard Epstein, the intellectual guru of the property rights movement who is best known for his 1985 book on regulatory takings, “the system of land use planning is a form of socialism in microcosm.”

Property rights advocates do not accept the legitimacy of government regulatory activity. From their point of view, Euclid, with its one-vote majority validating zoning, was as wrongly decided as was Kelo. What weaves their perspectives together is a view that strong private property is central to the viability of democratic and market (capitalist) systems. Therefore, their objection is not about compensation for regulations that are too burdensome. They want the actual dismantling of regulation. Thus, the negative impacts of the regulatory takings initiatives identified by Jacobs are precisely the point. The property rights movement wants the outcome of regulatory takings initiatives to be so complex and difficult that government essentially walks away from the regulatory task.

So is regulatory change necessary, as Jacobs suggests? Maybe, but maybe not. Maybe the issue is not a general level of inequity in the current regulatory regime. Maybe it is instead the inability of planners, environmentalists, neighborhood residents, and others to clearly articulate the value of current regulatory approaches to the property rights of most landowners. In Euclid the Court noted that the problem with market-based decisions, and the justification for regulation, was that the result could be “a pig in the parlor instead of the barnyard.” A compelling and easily understood metaphor. In the early years of contemporary environmentalism, regulation’s defenders and advocates talked about the real negative impacts on property owners downwind and downstream. At a time when some urban industrial users visibly belched pollution into the air and rivers caught fire, this argument was again both easily understandable and compelling. Regulatory takings advocates present a case of the aggrieved property owner—literally the little old lady in tennis shoes. Regulatory takings opponents, regulation’s defenders, need equally compelling spokespeople and situations. In the early years of regulatory takings, some critics of these proposals labeled them “The Pornography Shop Owners Bill of Rights” to point out the potentially negative impact such laws could have on local land-use relationships. Maybe the problem with regulatory takings is the way the property rights movement has hijacked the policy discourse over property and shaped it to be on its terms so as to advance its agenda. Maybe the necessary balance is for those who find the current level of regulation acceptable (and oftentimes even too light) to identify the language that allows them to talk about the issue in as clear, provocative, and effective a way as those who advance the cause of regulatory takings.

Harvey M. Jacobs is a professor in the Department of Urban and Regional Planning and Gaylord Nelson Institute for Environmental Studies, University of Wisconsin-Madison, and he is the editor of Private Property in the 21st Century: The Future of an American Ideal(2004) and Who Owns America? Social Conflict Over Property Rights(1998).

Preferred Citation: Harvey M. Jacobs, New Actions or New Arguments over Regulatory Takings?, 117 Yale L.J. Pocket Part 65 (2007),