40 Pages Posted: 9 Jan 2010 Last revised: 16 Jul 2010
Date Written: January 8, 2010
This Article examines how Washington State courts have allowed the precautionary principle to encroach upon the essential nexus test in the context of land use exactions. The essential nexus test requires government to establish a cause-and-effect connection between development and an identified public problem before placing conditions on development. The precautionary principle, however, endorses regulation of land use in the absence of causation. Although U.S. Supreme Court precedent requires government to prove causal connections, recent Washington case law shows that this test of causation is morphing into a less scrutinizing means-end test of rationality. This shift was evident in the recent case of Citizens' Alliance for Property Rights v. Sims. In that case, Washington courts found the government's generalized scientific assessments to satisfy the essential nexus test, even though the science did not establish a causal connection between clearing of rural properties and environmental harm due to stormwater runoff. This Article urges courts to take a more vigorous interest in protecting private property rights by making causation, not precaution, the driving principle of environmental regulation.
First published by Environmental Law, Volume 40, Issue 3.
Keywords: Washington, precautionary principle, Citizens Alliance, environmental law, essential nexus, Nollan, Dolan, RCW 82.02.020, property rights
Suggested Citation: Suggested Citation
Hodges, Brian T. and Himebaugh, Daniel A., Have Washington Courts Lost Essential Nexus to the Precautionary Principle? Citizens' Alliance for Property Rights v. Sims (January 8, 2010). Available at SSRN: https://ssrn.com/abstract=1533574 or http://dx.doi.org/10.2139/ssrn.1533574