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- Title
THE TAKINGS PROJECT REVISITED: A CRITICAL ANALYSIS OF THIS EXPANDING THREAT TO ENVIRONMENTAL LAW.
- Authors
Pollack, James
- Abstract
In 1998, Douglas T. Kendall and Charles P. Lord warned of "a large and increasingly successful campaign by conservatives and libertarians to use the federal judiciary to achieve an anti-regulatory, anti-environmental agenda." Their article presciently described a growing trend--what they termed "The Takings Project"--of ideologically motivated judges, developers, foundations, and non-profit "public interest" organizations intent on fighting the regulatory state through constitutionally protected development rights originating in the Takings Clause. In particular, Kendall and Lord observed a recent and dramatic shift in Just Compensation doctrine that began in the 1980s. This wave of litigation successfully began to "use the takings clause of the Fifth Amendment as a severe brake on federal and state regulation of business and property.". This Note argues that the Takings Project has grown in strength and breadth since the turn of the century. The Project now pursues impact litigation on the Just Compensation Clause, the Clean Water Act, the Endangered Species Act, and a variety of other bedrock environmental laws. This litigation threatens core government tools to protect the environment and public health. Part I analyzes a series of Just Compensation and Clean Water Act cases to show the growth of the Takings Project since Kendall and Lord's article. These cases together reveal the mechanisms that the Takings Project uses to advance its anti-regulatory aims. Part II examines the ways the Takings Project successfully navigates the legal system. Part III assesses the progress and success of the Takings Project as a whole since Kendall and Lord's article. Finally, Part IV proposes potential responses to the threat posed by the Takings Project.
- Subjects
TAKINGS clause (Constitutional law); ENVIRONMENTAL law; CRITICAL analysis; JUST compensation (Eminent domain); ENDANGERED Species Act of 1973 (U.S.)
- Publication
Harvard Environmental Law Review, 2020, Vol 44, Issue 1, p235
- ISSN
0147-8257
- Publication type
Article