Weakening Land Use Protections — “Takings”

In 1995, the House passed legislation which redefined the legal concept of private property rights or “takings.” Landowners who claimed that their compliance with the Endangered Species Act or the Clean Water Act devalued even part of their property by 20% would be entitled to payment from U.S. taxpayers. For example, property owners who claimed that federal protection of endangered wildlife or wetlands reduced the value of any portion of their property by more than 20% would have to be paid in order to comply with the law. This bill and its successors did not move through the Senate.

Last year, the House passed H.R. 1534, which would further the same so-called “property rights” agenda, but by another means. This time, Rep. Elton Gallegly (R-CA), at the urging of the National Association of Homebuilders, worked to change existing rules and procedures to give developers a major advantage over local governments in lawsuits challenging land use protections (LCV 1997 Scorecard, House vote 3).

In 1998, so-called “property rights” supporters took a more subtle tack by attempting to undermine federal protections for neighboring property, for people and the environment. H.R. 992, the Tucker Act Shuffle Relief Act, sponsored by Rep. Lamar Smith (R-TX), would allow polluters to newly challenge long-settled federal environmental safeguards and invite massive forum shopping by industries in search of responsive courts. It would promote challenges to environmental safeguards by granting the Court of Federal Claims (CFC) the power to invalidate federal statutes, regulations, and enforcement actions. This new power raises serious constitutional concerns, as it is normally reserved for the federal courts created by Article III of the U.S. Constitution, while the CFC was created by Congress. The present role and experience of the CFC is limited to deciding cases involving money claims against the United States. CFC judges lack the clear constitutional authority and necessary experience in determining whether federal environmental safeguards are lawful.

Companies could bypass long-settled decisions in the federal district court and appellate courts by asking the CFC to invalidate actions that protect neighboring homeowners, communities, and the environment. Both the CFC and (on appeal) the Federal Circuit would be free to ignore prior precedents by other courts that upheld vital national protections. H.R. 992 was opposed by the U.S. Judicial Conference, chaired by Chief Justice William Rehnquist. Floor opposition to the bill was led by Reps. Mel Watt (D-NC) and Sherwood Boehlert (R-NY).

Supporters of H.R. 992 argue that the bill would permit efficient consolidation of money and other claims. A substitute amendment offered by Reps. Watt and Steven Rothman (D-NJ) answered that argument by providing consolidation of claims within the district court system where existing legal precedents would be honored. The Watt substitute was defeated 206 – 206, when House Speaker Newt Gingrich (R-GA) took the unusual step of casting the tie vote, thereby defeating the amendment.

On March 12, 1998, the House passed H.R. 992, 230 – 180. NO is the pro-environment vote. The Clinton Administration threatened to veto this bill. The Senate later blocked action on a companion bill that combined H.R. 1534 and H.R. 992 (See Senate vote 1).