GBL 480 Exam 2

Takings Clause

5th Amendment

"Shal private property be taken for public use without just compensation”

The power the federal & state government has is called Eminent Domain

A taking

Enabled through the Takings Clause, when govt seizes property for public use

Physical and Regulatory Takings

Physical Taking

Invasion or occupation of property rights by govt action

Eminent Domain

The actual power fed or state has to take over property

Condemnation

Actual process of taking over someones property, filed in a lawsuit

Rarely argued that someone doesn’t have the power, but more on what counts as “fair market value”

Regulatory Taking

When government restricts owners rights so much that the action becomes functional equivalent of physical seizure.

Incorporations Clause

14th Amendment, extends takings clause power to the States

Hadachek v Sebastian (1915)

Brickyard restriction in LA, which slowly annexed territory until it took over Hadachek’s property.

Ruling: Police Power is one of govt’s most essential and least limitable powers. Valid as long as not arbitrary. Even though Hadachek lost a lot of value, it wasn’t all and therefore doesn’t count as a taking and he is NOT compensated

Penn Coal v Mahon (1922)

Penn Coal mines under someone property. cause severe property value loss

RULE: a regulation that so severely diminished value of priv property acts to a taking and DOES require compensation. Shows that there is some tipping point.

Categorical Takings

ALWAYS a taking and requires compensation: Physical Invasions (access mandate) and Complete loss of Value

Use Restrictions

Sometimes count as a taking, use Penn Central TestxE

Exactions

Type of regulation where govt requires some kind of public benefit in order to provide a permit. ie yes to permit but need to also provide this benefit.

Sometimes count as a taking

Use Nolan-Dolan Test

Navigable Servitude/Public Trust

Never a taking, no compensation

Takings Decision Tree

1) Is It a physical seizure (imminent domain)? Yes > just compensation always required

2) Is it a categorical taking? a) Physical Invasion / access mandate or b) loss of ALL economic value? Yes> compensation

3) Is it a use restriction that is not Toal? > Penn Central Test (character of action, investment backed expectations, economic impact).

4) Is it an exaction (condition on development approval)? > Nolan-Dolan test

5) Navigational servitude / public trust > No compensation, never a taking.

Penn Central Test

Used when govt is restricting use of property (ie Penn Central can’t build skyscraper over grand central)

1) Character of govt action:

• What is scope of regulation? the broader the more likely to not be a taking

2) Extent of interference w/ reasonable investment backed expectations

• did you have reasonable investment into project that is being restricted?

• If you have put in effort to find investors and start project, more likely to be a taking

3) Economic impact on property owner

• What is loss of value/ economic impact of regulation?

Kaiser Aetna vs US

Private community builds pond, the Permit requires them to provide public access into their pond.
RULE: Access Mandate = Always a Taking

Lucas v South Carolina Coastal Council

Lucas buys properties, after buying state regulations. Lucas argues he has no economic use for property now.

RULE: If regulation deprives owner of all economically viable use it is categorically a taking

Palazoolo vs Rhode Island

Restrictions stopped development on all but 2/74 lots

So Not complete economic loss, applied Penn Central test, determines it still counts as a taking

Tahoe Sierra Preservation Council v Tahoe Regional Planning Agency (2002)

Real estate owners buy property, then placed under Moratorium.

Rule: Moratorium with intent to restart eventually does not count as a taking

Nollan-Dolan Test

1. For it to not be a taking there must be a reasonable nexus between exaction and legitimate state interest

2. Government must show rough proportionality between exaction and impact of developmont

If condition fails Nollan-Dolan (doesn’t have reasonable nexus or rough proportionality) then it is a taking

Nollan vs Cali Coastal Commission (1987)

Establishes essential nexus. there must be logical connection between what you want owner to do and goal.

Ex: govt orders Nollan to have an easement and let ppl use his beach bc they are worried his house blocks view. But that does’t follow logic so therefore it is a taking.

Dolan v City of Tigard (1994)

Establishes rough proportionality

Govt asks Dolan to give away ownership instead of just not letting him build near river. This is overkill and not rough proportionality.

So therefore it is a taking.

Public Trust Doctrine

Public trust = states own navigable waters for public benefit, Fed can use it as they want and it is never a taking

Ordinary High Water Mark

Where tide normally hits, under the public trust

Can never impede on public water use

Log Float Test

How to tell if body of water is Navigable in Michigan.

If a log can float on it then it negative ExternNcounts as Public/State Property

Negative Externalities

Results of climate change

Market doesn’t always account for them
Exist when individuals bear a portion of the cost of a good's production without having any influence over the production decisions

Approaches to Pollution Control

Libility, Direct Regulation, Charges, Subsidies, Pollution Markets

Common Law

Derived from jduciail decisions as opposed to statutes

Is reactive doesn’t always solve issue if the courts pay for damages instead of injunction.

Private Nuisance

Unreasonable interference w/ a persons use and enjoyment of their property. Grounds to sue.

Public Nuisance

unreasonable interference w/ a right that general shares in common

Boomer vs Atlantic Cement Co (1970)

RULE: Courts tend to balance the harms when deciding whether to issue an injunction (rather than automatically enjoining the polluter). TAKEAWAY: nuisance remedy may be damages instead of shutdown when the economic harm of an injunction outweighs the harm to the plaintiff

Clean Air Act (1970)

Federal statute. Originally 1963; major amendments 1970, 1977, 1990. Regulates ambient air (not traditional end-of-pipe). Requires EPA to set health-based ambient air standards (NAAQS); sets deadlines for states; creates a state permitting system for major sources; non-attaining areas must adopt specified controls; addresses hazardous air pollutants.

Criteria Pollutants

6 Main Plllutants regulated under CAA

Lead, Nitrogen Dioxide, Ozone, Carbon Monoxide, Sulfur Dioxide, Particulates

National Ambient Air Quality Standards (NAAQS)

Set by EPA under CAA, levels are “What is health for humans to breathe”

Does not consider feasibility/technology or cost-benefit analysis when setting NAAQS

Act as goal/starting point of CAA

Primary vs Secondary Standard

Under NAAQS

Primary = Healthy level for huamns

Secondary = healthy for environment, non humans

State Implementation Plan (SIP)

State plan to meet NAAQS, mostly through permitting

(In Michigan Called a Part 55 Permit)

Attainment vs Non Attainment Areas

SIP splits areas into attainment or non attainment.

Attainment = meetings NAAQS

CAA Sources

Mobile, New Stationary, and Existing Stationary

New Stationary Sources Methods of Regulation

New Source Review (NSR), New Source Performance Standards (NSPS)

New Source Performance Standards (NSPS)

For New Stationary Sources

Standards establishing max emission levels, established per industry/category

Specify how much may be emitted, each source decides how to reach that limit

New Source Review (NSR)

Permitting system based on areas:

Attainment:

• requires prevention of significant deterioration (psd)

• Must be designed with best available control technology (back)

• allowed to consider economics

Nonattainment areas:

• lowest achievable emission rate (laer)

• source must offset requirements

PSD

Prevention of Significant Deterioration

CAA > NAAQS > New Stationary Source > NSR > Attainment area

Specific type of permit, to prevent significant deterioration of environment

BACT

Best Available Control Technology

NSR > Attainment > PSD

LAER

Lowest Achievable Emission Rate

Most stringent emission limitation in SIP or achieved in practice. Whatever is more stringent

disregards economics

Existing Stationary Sources

Built pre-1970

If you modify a existing source it turns into a new source

Attainment:

• no regulations

Nonattainment

• Must instal RACT

• can consider economics, and is much more lenient

RACT

Reasonable Available Control Technology

Hazardous Air Pollutants

HAPs

Regulated under CAA

Known to cause cancer or other serious health effects

Regulated under MACT

MACT

Most achievable control technology

Standards/requirements for HAPS, based on levels that are being controlled by other low emitting sources in industry

Effluent

Water pollution

Clean Water Act (CWA)

End of the pipe regulation, control effluent leaving pipes

Goal is for “fishable and swimmable” bodies of water

Only applies to point sources that discharge into waters of the US

Water Pollution Sources

Farms/Ag, Industry, Municipal

Pollutants

Organic Waste

Thermal Pollution

Sediments

Toxic Chemicals

Biochemical Oxygen Demand (BOD)

Amy of o2 consumed by bacteria and other organisms while they decompose organic matter under aerobic conditions.

Used to measure Organic Waste Pollutants

Eutrophication

“Dying of lakes”

from addition of nutrients and sediments

WOTUS

Waters of the United States

Waters that help interstate commerce, navigable waterways.

Point Source

Any discernible, confiend, and discrete conveyance, including but not limited to any pipe, dit h, channel, tunnel conduit, discrete figures, CAFO, etc”

US v Riverside Bayview Homes (1985)

court upheld jurisdiction over wetlands adjacent to navigable water

SWANCC (2001)

Rejected jurisdiction over non-navigable, isolated, intrastate ponds used by migratory birds

Rapanos v US (2006)

Wetland must posses significant nexus to waters that are navigable or could be reasonably made so

Sackett v EPA (2023)

Continous surface connection test to bodies that are WOTUS

NPDES

National Pollutant Discharge Elimination System, permit

• issued by army corps

• specifies acceptable lvl of pollutants, provides monitoring and reporting requirements

  • fines as main form of relief

BPT (1972)

Best Practicable Control technology

• for NON publicly owned treatment works

• lenient standards, allows consideration of total cost

• Existing industrial point source

• NPDES > Existing Point Sources

BAT

Best available technology (1983)'

• Existing industrial point source

• ALL non publicly owned water treatment works by 1983

• Applicable to toxic and nonconventional pollutants

• Most stringent, doesn’t take cost into account

BCT

Best Conventional Control Technology (1984)

• existing industrial point source

• considers reasonable relationship between benefit from improved tech compared to reduction of criteria pollutant

NSPS

New Source Performance Standard

For new effluent sources, after proposal of applicable performance standards

• Must reflect best available demonstrated control tech

• very stringent

TMDL

Total Maximum Daily Load

• max pollutant that can enter waterbody so it meets and continues to meet water quality standards

Similar to clean air act only for designated bodies, find art needed to be healthy are regulate to get there

TMDL Point Sources

NPDES Permit > Wasteload Allocation

Wasteload Allocation

• list all point sources

• permits contain limits of max pollutants

• determine load allocation (LA) for non point sources, which can’t be regulated

• Allocate retainer of allowable apt into everyone permit

New Stationary Source + Attainment Area

Under NSR

PSD, BACT, considers economics

Existing Stationary Source + Attainment Area

No real regulation

New stationary source + Non-attainment

LAER

Offsetting

Disregards Economics

Existing Stationary Source + Non-attainment

RACT

Considers Economics

Bubbling

Type of Offsetting, close at a different source with the same ownership

Netting

Close a different pipe at the same source

Best Available Demonstrated Control Technology

New effluent sources, under NSPS

most stringent controls for new sources

Great Lakes Compact

Agreement signed by states + 2 Canadian provinces

Great Lakes water may not be diverted out of the Great Lakes watershed, unless the use qualifies for the bottled water loophole.

Reasonable Use Doctrine

Controls groundwater in Michigan. A landowner may extract water for their own use as long as it does not interfere with a neighbor's use of the water.