Lucas and creative constitutional interpretation.

I participated, to some small extent, in the Lucas case, being on the American Planning Association's Amicus Curiae Committee, which filed a Supreme Court brief in the case. The Court neither followed, nor apparently even used that brief. In fact, the Court did not use many of the amicus briefs in the case. One comes away with the feeling that the Court knew where it wanted to be in that case and cobbled a way of justifying that position. Moreover, the opinion of the Court, though fairly narrow in its scope, contains, especially in the footnotes, the seeds of a far more expansive change from current takings jurisprudence.

On its face, Lucas was not a radical departure from previous law, holding that if a statute, unsupported by common law, deprives a property of all value, it constitutes a "taking."(1) To quote the Court, "When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of a common good, that is to leave property economically idle, he has suffered a taking."(2) The implications of the case are really found in the footnotes of the Court's opinion, particularly footnotes 7 and 8, discussed below.(3) While the text of the case does not radically depart from current law, this and certain other Supreme Court cases have eroded the underpinnings of the social contract which underlies environmental regulation. These cases seem to have resurrected substantive due process in one of its more radical forms.

Lucas contained an unfortunate constellation of facts. The plaintiff expended a great deal of money to buy two undeveloped lots before the challenged regulations came into effect.(4) Property owners had already developed other lots in the area.(5) There was then the apparent unfairness of prohibiting Lucas from building on the two lots he had purchased with development in mind. There was an unchallenged lower court finding that the Lucas lots were valueless, despite the owner's expectation of economic use.(6) There was, at the time the initial lawsuit was filed, no administrative means of obtaining a variance from the regulations.(7) In fact, the South Carolina legislature did not enact variance provisions until two years after the original legislation came into effect (and after the lower court's decision).(8) There was thus no "safety valve" available. Finally, the South Carolina Supreme Court found the case to be ripe.(9) Consequently, the state could not use the strong defense that Lucas had failed to use all available administrative mechanisms to determine whether an economically viable use remained in the land. Instead, the South Carolina Supreme Court found this case could be decided on the facts before the trial court.(10) The U.S. Supreme Court majority was only too happy to accept that determination.

The case contains several important holdings. The most interesting holding was the fate of the so-called "nuisance exception," which, as you will see, the Court has narrowed greatly.(11) Second, there was the issue of when a taking may exist. In Agins v. Tiburon, the Supreme Court said that a taking exists when the regulation in question advances no substantial public interest, or when no viable economic use remains in the land.(12) Some courts had interpreted Agins to change the "or" to "and." The Lucas Court emphasized the disjunctive nature of the Agins tests.(13) Further, the Court said it could find a taking without regard to the nature of the public purpose if: (1) the government imposes a physical invasion, or (2) when a statute proscribes all economically valuable uses in the land which existed under common law.(14)

Justice Scalia, who has been able to select and manipulate very vague phrases out of previous cases to invent new categories in which to frame the case for a taking, has effectively rewritten constitutional law in the regulatory takings field in Lucas. Justice Scalia engaged in this exercise in a number of places in the opinion.(15)

For example, Justice Scalia stated that it is less realistic to say that the legislature is adjusting the usual burdens and benefits of economic life to secure an "average reciprocity of advantage" when a regulation leaves a landowner with nothing.(16) This "average reciprocity of advantage" appears in Pennsylvania Coal v. Mahon,(17) but did not reappear in any significant way until Justice Rehnquist used the expression in Penn Central.(18) The origin and rationale of this "test" is certainly open to question. Justice Scalia also used the maxim, taken from Pennsylvania Coal, that government could hardly go on without affecting someone's rights in private property, but nevertheless determined that the maxim does not apply to a landowner deprived of all viable economic use.(19) South Carolina may have erred in failing to provide a safety mechanism, but the state was certainly entitled to rely upon Supreme Court precedent on the existence of a nuisance exception. The Lucas Court simply recharacterized that exception virtually out of existence.(20)

A close review of footnotes 7 and 8 lends credence to the thesis that Scalia wrote Lucas with future cases in mind.(21) At those places in the opinion, Justice Scalia took pains to say that less than full deprivation of economic value may be a taking in certain circumstances. He expressly left that question open, so that regulations which deprive most or some value could still be eligible for a taking claim. Justice Scalia also suggested that a regulation that requires a landowner to leave property in its natural state, which he found equivalent to conscripting the private property into public service in the name of preventing public harm, may constitute a taking. Who decides that question? Courts are not endowed with such wisdom to make those kinds of determinations of what the legislature "really meant" or was "really" bent on doing.

Scalia's rejection of the public harm test is creative historical revisionism at its best. Justice Scalia says that the public nuisance exception was simply an earlier way of characterizing legitimate state interests, the first of the two Agins prongs, and having no other reason for its existence.(22)

Particularly revealing is Scalia's statement that, if a court allowed diminution in value by legislative action, property would never be safe from regulation.(23) All regulation, by its nature, affects property value. The judgment as to the allocation of benefits and burdens is, in reality, a political decision. But the most interesting suggestion by Justice Scalia is that any other way of viewing the interplay between regulation and property rights would be inconsistent with our "constitutional culture." That seems to me to be the "family values" scheme for the conservative courts of the |90s; that is, whatever the Court wants the result to be can always be accommodated.

Finally, the notion that nuisance and property law provide a background for regulation is interesting.(24) Who decides where that interplay begins and ends? Is it nuisance law as of the adoption of the Constitution? Is it the continuing body of common law? What role does the state legislature have in determining property rights among its citizens by legislative determinations of nuisances?

The question of the constitutional remedy in takings cases is also interesting. Is it a full purchase remedy when a person claims that a regulation has resulted in a partial taking? And what about standing; does a property owner always have standing to challenge an alleged taking by an environmental regulation, even though environmental groups may not have standing to argue for upholding the regulation?(25) The result reveals a curious hierarchy of values.

The Pennsylvania Coal test for regulation which goes "too far," is value-charged, without content, and means only what the Court wants it to mean in an individual case. The Court adds to this imprecision by saying that there is no set standard as to what constitutes "too far" and that this is a factual inquiry examined on an ad hoc basis. That is hardly a basis for deciding constitutional questions. Finally, how does notice fit into all this? Does knowledge of the regulation when a plaintiff purchases property have any effect on the takings claim which a landowner may later bring?

The case suggests some morals for state and local governments which counsel analysis before regulation. If a statute may leave property without value, the legislature should make use of "safety valves" in the form of administrative relief mechanisms. Legislatures should not emulate South Carolina's original scheme, which had no safety valves. Moreover, South Carolina should have insisted that the trial court factor into the takings equation those subsequently adopted administrative mechanisms designed to avoid a takings

claim.

There is always the question of the amount of payment for a regulatory taking. And, of course, there is the question of who will pay. What are our social values? Will we think more of the immediacy of having police or open space? More importantly, the present compensation system favors those who already "have theirs." Such a standard makes change more difficult and favors those who already have something of value. This incipient property rights revolution which the U.S. Supreme Court has instituted, which will protect everybody's property rights equally, is reminiscent of the statement of the nineteenth century French writer, Anatole France, that "the majestic egalitarianism of the law ... forbids rich and poor alike to sleep under bridges."(26)

(1.) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2889-90 (1992). (2.) Id. at 2895. (3.) Id. at 2894, 2895 n.8. (4.) Id. at 2889. (5.) Id. (6.) Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2890 (1992). (7.) Id. at 2890-91. (8.) Id. (9.) See id. at 2890. (10.) Id. (11.) See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2899 (1992). (12.) 447 U.S. 255 (1980). (13.) Lucas, 112 S. Ct. at 2893. (14.) See id. at 2900. (15.) See, e.g., Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2894-01 (1992). (16.) Id. at 2894. (17.) 260 U.S. 393, 415 (1922). (18.) Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 140 (1978). (19.) Lucas, 112 S. Ct. at 2894. (20.) See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2897 (1992). (21.) Id. at 2894 n.7, 2895 n.8. (22.) Id. at 2897 n.10. (23.) Id. at 2898. (24.) See id. at 2899. (25.) Lujan v. Defenders of Wildlife, 112 S. Ct. 2130 (1992). (26.) Anatole France, Le Lys Rouge, (1894), quoted in, Oxford Dictionary of Quotations, 217 (3d ed. 1979).