Next Battle in the Property Rights War?

In 1992, in South Carolina Coastal Council v. Lucas, the Supreme Court held that a state statute or regulation that denies a property owner all economic use of her property requires payment of just compensation under the Takings Clause. The Court distinguished statutes and regulations from restrictions inherent in background principles of the common law of nuisance – the latter types of restrictions do not require just compensation.

The Supreme Court announced earlier this week that in the fall 2009 term it will hear another, similar, property rights case. The Court will hear an appeal of a decision by the Florida Supreme Court holding that a beach erosion control statute did not unconstitutionally deprive landowners of their property rights without just compensation. 

The facts in Stop the Beach Replenishment v. Florida Department of Environmental Protection are somewhat obscure and relate specifically to the consequences of beach replenishment in Florida. However, it again does raise the question of how the Supreme Court treats statutes. Prior to the 1960s, governments pretty much regulated nuisances pursuant to common law police power. Apparently, exercise of such power has the constitutional blessing of the Supreme Court.

On the other hand – to note the obvious – since the 1960s, across the gamut of environmental police power issues, use of statute and regulation has overtaken reliance on the common law. For some reason, however, constitutional jurisprudence has not caught up with reality on the ground. The whole idea of the common law is that it is flexible and changes over time. Is there any doubt that, had there not been an explosion of environmental statutes and regulations, there would have been an explosion in the development of the common law of nuisance? It seems near certain that courts would have identified numerous additional uses of property over the past 40 years that would now be considered nuisances.

Why should the same regulatory outcome require compensation if taken pursuant to statute or regulations, but not if it occurs as a result of judge-made common law?   

(In the interests of full disclosure, the broad question of how courts treat statutes, as opposed to the otherwise developing common law, was raised by my then-Professor Guido Calabresi in his 1982 book, A Common Law for the Age of StatutesJudge Calabresi, your student has not forgotten.)

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