Fifth amendment taking and environmental protection under the police power: Historical development and a modest proposal to address the muddle
- Bradley, Campbell, Carney & Madison, P.C., Golden, CO (United States)
Under its developing {open_quotes}just compensation{close_quotes} jurisprudence, the United States Supreme Court has applied the constitutional requirement (of just compensation for taking private property for public use) to overly intrusive regulations. The application of the just compensation clause to governmental environmental protection activity has pitted the basic principle of protection of private property from government confiscation against another basic principle-the police power (which allows the government to regulate the use of property to protect the health, safety, and welfare of the people). The authors outline the muddle resulting from the conflict of these two constitutional principles after tracing the development of each. This article first outlines the general trend of increasing regulation of the uses of private property under environmental laws pursuant to the police power, and then outlines the development of Fifth Amendment just compensation jurisprudence (from eminent domain, through inverse condemnation, to regulatory taking). The authors urge Congress to authorize a Commission to review exercise of the police power and environmental protection legislation in light of the Fifth Amendment just compensation provision and to recommend legislation that will reconcile the two principles.
- Research Organization:
- National Association of Environmental Professionals, Washington, DC (United States)
- OSTI ID:
- 125971
- Report Number(s):
- CONF-9506115-; TRN: 95:006735-0065
- Resource Relation:
- Conference: 20. National Association of Environmental Professionals annual conference and exposition: environmental challenges - the next twenty years, Washington, DC (United States), 10-13 Jun 1995; Other Information: PBD: 1995; Related Information: Is Part Of Environmental challenges: The next 20 years. Proceedings; PB: 932 p.
- Country of Publication:
- United States
- Language:
- English
Similar Records
Land-restoration provisions of the Surface Mining Control and Reclamation Act: constitutional considerations
Environmental protection and property rights