The End of Environmental Law?: Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit

Abstract:     
This article examines two Federal Circuit decisions handed down in the wake of the Supreme Court's rulings in Lucas v. South Carolina Coastal Comm'n and Dolan v. City of Tigard, in which the Federal Circuit indicated it would impose much more exacting scrutiny on federal regulations than the Supreme Court. In one case, Florida Rock Industries v. U.S., the Federal Circuit approved a just compensation for a partial taking of property. In the other, Loveladies Harbor, Inc. v. U.S., the court ruled that the relevant parcel was only the wetlands burdened by the regulation, not the entire original tract owned and developed by the claimant.

Both cases involved federal regulation under the Clean Water Act, suggesting that the Federal Circuit was announcing stricter compensation requirements for federal regulation than virtually any other court has imposed on state and local regulation. The article suggests that this is an anomolous result, since the problems the Just Compensation Clause aims to remedy - rent-seeking, disparate treatment, unscientific and uneconomical regulation - are much more likely at the state and local level than the federal level. The article maintains that the Federal Circuit's libertarian view of property risks erecting an imperial judiciary, quite out of touch with the complexities and interdependencies of most most environmental problems. Moreover, the natural law principles at the root of liberterian property are out of step with Supreme Court precedent and the history and purpose of the Just Compensation Clause.

Keywords: takings clause, environmental law, constitutional law

JEL Classifications: K2, K32

Accepted Paper Series