Eminent Domain - What is a taking?

The United States Constitution includes a provision which forbids the taking of private property for public use. However, the same Constitutional provision implicitly allows such takings to occur so long as "just compensation" is provided. (This provision is contained in the Fifth Amendment to the U.S. Constitution).

For citizens in danger of losing property rights, the first question to ask in this area of law is "What qualifies as a takings?" Clearly, where the government converts an individual's property into public land, forcing the individual to move, a takings has occurred (this is referred to as a "physical invasion"). But not all takings are this easy to recognize.

For example, in Lucas v. South Carolina Coastal Commission, the United States Supreme Court found that an individual was entitled to compensation where the government had subjected his land to such extensive regulation that it no longer had any viable economic use. Thus, even though the government did not physically take the individual's property, he was entitled to compensation for the manner in which the government regulated his land.

In Lucas, the Supreme Court held that a regulation which deprives an owner of all economic use of his land will always qualify as a takings. This rule now accompanies the prior standard from Pennsylvania Coal Co. v. Mahon - that a regulation which goes "too far" will qualify as a takings. In this setting, a landowner subject to government regulation will want to show that their land has no economic value left, since that type of regulation will always qualify as a takings. In contrast, the government will likely try to regulate land in a way which does not deprive an owner of all economic uses.

But even if an individual's land has economic use left after the government's action, they could still try to prove that a regulatory takings occurred using the Pennsylvania Coal Co. standard. While this rule is very murky, it gives the landowner an opportunity to show that the government's regulation went "too far." If successful, the landowner would be entitled to compensation for the government's actions. Thus, landowners who have lost property rights due to government regulation may want to consider legal action, as they may be entitled to compensation for their loss.

A Finding of No Significant Impact

As I discussed in the previous post, SEPA requires state agencies to issue Environmental Impact Statements where their actions have a significant effect on the environment. But when the agency determines that a proposed action will not impact the environment negatively, it will issue a Finding of No Significant Impact instead (also known as a "FONSI").

Often, the decision to issue a FONSI will be simple for the agency, as many actions have no impact on the environment. But since the standard is not crystal clear, there are many actions that could significantly effect the environment in one mind but not another. For these actions, the agency is likely to issue a FONSI rather than go through the arduous process of creating an Environmental Impact Statement (which can take over a year to complete).

If the decision to issue a FONSI is contentious, an aggrieved party may seek judicial review. Unlike the substantive decisions of an agency following an Environmental Impact Statement, a court will not simply defer to the agency's decision to issue a FONSI. Thus, if a party can prove that an agency's action will significantly impact the environment, a court will throw out the FONSI and force the agency to produce an Environmental Impact Statement instead.

If nothing else, this can serve as a useful delay tactic which forces the agency to consider other alternatives. But ideally, when all of the information is on the table, the agency will choose the course of action that is best suited for all parties involved, including environmental advocates. With that in mind, a party aggrieved by an agency's decision to issue a FONSI should consider judicial remedies, since it might lead to a more favorable result in the future.