Regulatory Takings
Publications
Policy Papers
- Property Values and Oregon Measure 37: Exposing the False Premise of Regulation's Harm to Landowners
This new GELPI report debunks the premise of Measure 37 and other takings measures that regulation of land use necessarily reduces the market value of regulated parcels.
- Battling Over Leopold's Legacy
Eric Freyfogle, Max L. Rowe Professor at the University of Illinois
College of Law. (2004)
This paper, based on a talk delivered in Fall 2003 at the 6th annual Georgetown Regulatory
Takings Conference, discusses the competition by those with different points of view to claim the mantle of Aldo Leopold.
- "Regulatory Takings and Proposals for Change": One-Sided and Uninformed
C. Ford Runge, Distinguished McKnight University Professor of Applied Economics and Law, University of Minnesota (July, 1999).
A response to Regulatory Takings and Proposals for Change (U.S. Congressional Budget Office, December 1998), critiquing the methods CBO used to analyze the effects of government regulation on private property values, in particular the premise that regulations invariably reduce property values.
- The Original Understanding of the Takings Clause
William Michael Treanor, Professor of Law, Fordham University (1998)
Explaining why neither the text nor the original understanding of the Takings
Clause of the Fifth Amendment supports an expansiv theory of regulatory takings.
Short Articles/Op-Eds
- Getting Development Wrong
An op-ed on the relationship between takings and due process claims
published in the Los Angeles Daily Journal (December 13, 2007).
- GELPI Memo on Oregon's Measure 49
- Echeverria/Epstein Point-Counterpoint on Lucas
An exchange between John Echeverria and Richard Epstein on the Lucas decision published in the National Law Journal (November 14, 2005, January 9, 2006, February 20, 2006).
- Recent Hurricanes: Time to Overturn Lucas
An op-ed published in The National Law Journal (November 14, 2005).
- The House Takes an Ax to the Endangered Species Act
An op-ed on the Pombo ESA bill and Oregon Measure 37, circulated by High Country News and Headwaters News (October 10, 2005, October 11, 2005).
- A Skeptic's Perspective on Voluntary Conservation Easements
A commentary on why conservation easements are relatively ineffective and financially wasteful for pursuing conservation goals, published in Ecosystem Marketplace (August 31, 2005).
- Top Ten Reasons to Be Skeptical About Voluntary Conservation Easements
Prepared for the Land Trust Alliance Rally (October 28-31, 2004).
- Revive the Legacy of Land Use Controls, Create More Incentives for Easements
A point-counterpoint on the use of conservation easements between GELPI's John Echeverria and Dana Beach, the Executive Director of the South Carolina Coastal Conservation League, published in Open Space, a publication from the Open Space Institute (Summer 2004).
- Friedenburg v. DEC: A Troubling Regulatory Takings Ruling
An opinion piece on the New York Appellate Division decision in Friedenburg that appeared in Environmental Law in New York (March 2004).
- High Court Must Simplify Law of Regulatory Takings
An op-ed piece by GELPI's John Echeverria and Bill Higgins, the land use project director for the Institute for Local Self Government, commenting on the complexity of the California Supreme Court's framework for regulatory takings analysis, published in the California Daily Journal (December 18, 2002).
- A Victory for Land Use Planning
An editorial commenting on the U.S. Supreme Court's Tahoe-Sierra decision published in both High Country News and the Seattle Post-Intelligencer (May 2002).
- Rethinking Property Rights and Wildlife Protection
An article on property rights claims and public rights in wildlife included in the 6th edition of the textbook Environmental Science: Creating a Sustainable Future, by Daniel D. Chiras (2001).
- Editorial Was Unfair Slap at Environmental Groups
An op-ed by GELPI's John Echeverria responding to a series of articles by reporter Tom Knudson in the Sacramento Bee criticizing the environmental community for its fundraising practices and its use of litigation, published in the Atlanta Journal Constitution.
- It Comes Down to the Investor’s Expectations
A short piece by GELPI's John Echeverria responding to a piece by Eric Grant, co-counsel for Anthony Palazzolo in the U.S. Supreme Court case, discussing the so-called notice rule, published in Washington Legal Times (March 26, 2001).
- It's Conservatives Now Who Are Judicial Activists: Why Environmentalists Should Be Alarmed
An editorial on judicial activism and the environment published by tompaine.com.
- Who Should Control Our Land?
A point-counterpoint on the property rights issue between GELPI's John Echeverria and James Delong, published in The Washington Times' World and I magazine (March 1999).
- Don't Make Poor Choice Judge Smith
An op-ed discussing Hage v. United States, a lawsuit in the U.S. Court of Federal Claims by a public land rancher claiming a taking of asserted private property rights in the public domain, published in the National Law Journal (February 1, 1999).
- Appeals Court Erred in Overturning Bay State Tobacco Disclosure Law.
An op-ed discussing the decision by the U.S. Court of Appeals for the 1st Circuit in Phillip Morris v. Harshbarger, enjoining implementation of the Massachusetts cigarette ingredient disclosure law, published in the Boston Globe (November 20, 1998).
- Curve Ahead? State Supreme Court Should Turn Takings in New Direction
An op-ed commenting on how the California Supreme Court should address a "substantially advances" takings claim in the Santa Monica Beach case, published in the San Francisco Daily Journal (November 9, 1998).
- It's Time for Courts to Limit Takings Rulings
An op-ed commenting on how the U.S. Supreme Court should decide the Del Monte Dunes case, published in the National Law Journal (October 26, 1998).
- Nominee's Interior Stress
An op-ed expressing concern about Secretary of Interior-nominee Gale Norton's views on property rights and federalism, published in the National Law Journal (January 22, 2001).
- What Would Aldo Leopold Say? An Ambiguous Environmental Victory in the House of Representatives
A contrarian op-ed piece on the Conservation and Reinvestment Act, approved by the U.S. House of Representatives, published in tompaine.com (May 11, 2000).
Law Review Articles
- Lingle's Legacy: Untangling Substantive Due Process From Takings Doctrine, Robert G. Dreher, 30 Harv Envtl L. Rev. 371 (2006)
Discussing the U.S. Supreme Court's decision in Lingle v. Chevron USA, Inc., and its implications for the scope and nature of regulatory takings analysis.
- The Triumph of Justice Stevens and the Principle of Generality, 7 Vt. J. Envtl. L. 22 (2005-2006)
Analyzing the contributions of Justice John Paul Stevens to the Supreme Court's modern regulatory takings doctrine.
- Making Sense of Penn Central,
23 UCLA J. Envtl. L. 171 (2005)
A synsthesis and restatement of the Penn Central regulatory takings test in light of the Supreme Court's latest takings decisions.
- Why Tulare Lake Was Incorrectly Decided
Presented at the Fall Meeting of the American Bar Association's Section of Environment, Energy, and Resources, September 21-25, 2005.
- Regulating Versus Paying Land Owners to Protect the Environment, 26 J. Land Resources & Envtl. L. 1 (2005)
Exploring the pros and cons, and interactions between, regulation and acquisition as land management tools.
- Lingle, Etc.: The U.S. Supreme Court's 2005 Takings Trilogy 35 Envtl L. Rptr. 10577 (2005)
Describing and analyzing the Supreme Court's takings trilogy in the 2005 term; Lingle v. Chevron USA, Inc., San Remo Hotel, LLP. v. City and County of San Francisco, and Kelo v. City of New London.
- Partial Regulatory Takings Live, But..., in Taking Sides on Takings Issues; The Impact of Tahoe-Sierra (Thomas E. Roberts, ed. 2003)
Analyzing the status of the partial regulatory takings theory in the aftermath of the Supreme Court's Tahoe-Sierra decision.
- The Real Contract on America, The Environmental Forum (July/August 2003)
Discribing how NAFTA Chapter 11 threatens the U.S. constitutional system as well as U.S. environmental regulatory standards.
- Regulatory Takings After Brown, 33 Envtl L. Rptr. 10626 (2003)
Unpacking the meaning and significance of the U.S. Supreme Court's regulatory takings decision in Brown v. Legal Foundation of Washington.
- "Perfectly Astounding" Public Rights; Wildlife Protection and the Takings Clause, John Echeverria & Julie Lurman, 16 Tul. Envtl. L. J. 331 (2003)
Discussing how the traditional doctrine of soverign ownership of wild animals serves as a powerful defense against Takings Challenges to modern endangered species and other wildlife protection measures.
- A Turning of the Tide: The Tahoe-Sierra Regulatory Takings Decision, 32 Envtl. L. Rptr. 11235 (2002)
Describing how the Supreme Court's Tahoe-Sierra decision points the way towards a narrowing of regulatory takings doctrine.
- A Preliminary Assessment of Palazzolo v. Rhode Island, 31 Envl. L. Rptr. 11112 (2001)
Describing and assessing the significance of the Supreme Court's regulatory takings decision in Palazzolo v. Rhode Island.
- Do Partial Regulatory Takings Exist? in Taking Sides on Takings Issues: Public and Private Perspectives (Thomas E. Roberts, ed. 2002)
Critiquing the partial regulatory takings theory.
- Takings and Errors, 51 Ala. L. Rev. 1047 (2001)
Comprehensively analyzing whether illegal and otherwise illegitimate government actions can provide the basis for takings claims under the Fifth Ammendment.
- Is the Penn Central Three-Factor Test Ready for History's Dustbin?, 52 Land Use L. & Zoning Dig. 3 (2000)
Advocating that the Supreme Court jettison its notorioiusly amorphous Penn Central analysis in favor of a discrete set of per se takings rules.
- Does a Regulation that Fails to Advance a Legitimate Governmental Interest Result in a Regulatory Taking?, 29 Envtl. L. 853 (1999)
Urging a reassessment of the U.S. Supreme Court's frequent statement that a claimant can establish a taking under the Fifth Amendment by demonstrating that a government action "substantially advance a legitimate state interest".
- Revving the Engines in Neutral: City of Monterey v. Del Monte Dunes at Monterey, Ltd., 29 Envtl. L. Rptr. (1999) 10682
Describing the Supreme Court's decision in Del Monte Dunes, outlining the decision's three major holdings, and explaining how the Court defered resolving the fundamental questions in takings law.
- A Preliminary Analysis of Del Monte Dunes, GELPI June 10, 1999
A preliminary analysis of the significance and lessons of the U.S. Supreme Court's May 24, 1999 decision in Del Monte Dunes.
- The Politics of Property Rights, 50 Okla. L. Rev. 351 (1997)
Discussing the politics of the property rights issue.
- Why the Takings Issue Matters, GELPI Fall 1997
- The Takings Issue and the Due Process Clause: A Way Out of the Doctrinal Confusion, John Echeverria & Sharon Dennis, 17 Vt. L. Rev. 695 (1993)
Arguing that drawing a sharp destinction between takings and due process issues represents the key to the creation of a coherent regulatory takings doctrine.
Testimony
Speeches
Presentations
- Floodplain Protection and the Regulatory Takings Issue: Or How to Slay the Property Rights Goliath with Tweezers
John D. Echeverria
Northeast Conference on Flood Hazards, Liabilities, & Opportunities
Vermont Law School
South Royalton, Vermont
October 2007
- Presentation to the U.S. Court of Federal Claims, 20th Annual Judicial Conference
John D. Echeverria
Denver, Colorado
October 11, 2007
- Where We Stand on the Takings Issue
John D. Echeverria
The American Planning Association Policy Conference
Washington, D.C.
October 1, 2007
- The Regulatory Takings Agenda
John D. Echeverria
The Nature Conservancy Western Regional Meeting
San Francisco, California
January 30, 2007
- The Regulatory Takings Issue and Environmental Protection
John D. Echeverria
Sierra Club
Sante Fe, New Mexico
December 9, 2006
- The Fairness Debate Spawned by Kelo and Oregon Measure 37
John D. Echeverria
PlaceMatters 2006
Denver, Colorado
October 19, 2006
- Kelo's Unanswered Questions:
Policy Issues Raised by the Use of Eminent Domain for Economic Development
John D. Echeverria
Annie Casey Foundation
September 21, 2006
- The Takings Issue: the Historical Background
John D. Echeverria
Georgetown University Law Center
June 27, 2006
Other Publications
Compilation of Reading Material for April 11 Land Use Roundtable
Conservation Easements: Perpetuity and Beyond, by Nancy McLaughlin. (September 2007) Emphasis on Parts III ("The Proper Use of Perpetual Conservation Easements") and IV ("Nonperpetual Conservation Easements")
Regulating v. Paying Landowners to Protect the Environment, by John Echeverria (2005)
Property Values and Oregon Measure 37, GELPI 2007
Property and Environment: Thoughts on an Evolving Relationship, by Peter Byrne
Conservation Easements: Planners' Friend or Foe? (see p. 4 and 5) Jesse Richardson (2006)
Selected readings from On Private Property, by Eric Freyfogle (Beacon Press, 2007)
"
Solving the Contentious Issues of Private Conservation Easements," Case Research Paper Series in Legal Studies (Korngold, 2007)
Conservation Options: Toward a Greater Private Role, (Thompson, 2001-2)
John Leshy and Molly McUsic's draft discussing the idea of public and/or private buy outs of grazing permits on public lands.
The Culture of Owning, by Eric Freyfogle (Orion Magazine, 2005)
The North Maine Woods: Speculating about the Future, (Pidot, 2005)
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