Planet Earth News: Recent Supreme Court Environmental Decisions

MOTHER EARTH NEWS environmental planet earth news briefs focuses on recent Supreme Court environmental decisions in the U.S.

| March/April 1988

  • U.S. Supreme Court
    Courting disaster in the nation's capital. Two of the cases—widely misreported by the press—had to do with the delicate subject of "taking."

  • U.S. Supreme Court

Environmental planet earth news brief about recent Supreme Court environmental decisions in the U.S. 

Environmental Planet Earth News

The Supreme Court can go for long periods without rendering decisions in environmental disputes. For one reason or another, however, the Court has recently handed down several. The results, as we shall see, are mixed.

Two of the cases—widely misreported by the press—had to do with the delicate subject of "taking." This is one of the things the Fifth Amendment prohibits: " . . . nor shall private property be taken for public use, without just compensation."

Over the years, taking has been defined by the courts to include not only outright condemnation of property but also zoning regulations that forbid certain kinds of building and other activities on private land that have the side effect of lowering the value of the property. Environmentalists worry that if environmental restrictions are included under the definition of taking, such regulations will become much more expensive.

Both of the present cases came to the Court from southern California. In one, a church sued the city of Los Angeles for forbidding the rebuilding of several buildings and other facilities that were destroyed when Mill Creek flooded Camp Lutherglen, a summer retreat for handicapped children operated by the church. The flood had caused fatalities, and the city council subsequently adopted regulations that effectively precluded replacing the buildings, since the site is in a flood plain and therefore dangerous. The First English Evangelical Lutheran Church sued, claiming that its property was being taken.

The Supreme Court ruled for the church, and panic coursed through the veins of the environmentalists as they read accounts of the ruling in the newspapers. The papers, however, missed a crucial detail. All the church had asked the Court to decide was whether it was entitled to compensation if Los Angeles' regulations were eventually deemed to be a taking. The Court said yes. The question of taking in this instance has not been litigated yet, and there's a good chance the regulations will not be deemed a taking since government has quite broad powers to regulate activities on private property when public health and safety are involved. Most lawyers who have actually read the case don't think it sets any unhappy precedent.


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