EDF Slams House Action On "Takings"

(22 October, 1997 — Washington) The Environmental Defense Fund (EDF) reacted strongly today to House passage of H.R. 1534, a bill by Rep. Elton Gallegly (R-CA) which would override basic local protections for private property, health, safety and the environment.

“Final passage of this bill would accomplish one thing,” said EDF’s legislative director Steve Cochran. “It would give big developers a new litigation stick which they can use to threaten state and local governments to get their way. It should not become law.”

In short, the bill as passed by the House would force federal courts to preempt state court consideration of takings claims against cities and towns. Rather than allowing local processes to work to resolve local land use issues, such as the negotiation of alternatives to a proposed development, local officials would find themselves in federal court whenever a takings is alleged. The bill would allow companies to sue in federal court once a single land use proposal is denied, even if the proposal would harm neighboring homeowners and even if local officials would approve other equally valuable uses that would not violate local zoning. It would, quite literally, make a “federal case” out of virtually all land use decisions that involved any alleged “takings,” pitting local governments against developers in a battle of lawyers rather than ideas.

The bill would also ignore established Supreme Court decisions. Some of these decisions have defined what information a court needs to decide whether a regulation results in a taking of private property. As a result of ignoring these precedents, cases under this new law would proceed past state court to federal court even without a complete factual record. Other decisions have defined a takings such that it deals with the use of property as a whole. This bill would overturn that definition and allow developers to demand compensation for any limitation on any part of a property.

In addition to adding litigation to an already over-crowded federal court, this bill would likely result in small towns, cities and counties across America being forced to continually defend against very expensive, premature, unwarranted takings lawsuits in federal courts. And the threats of repeated federal lawsuits by large developers will likely force unwarranted compromises as communities seek to avoid the costs of litigation. These compromises may force communities across the nation to abandon fundamental safeguards and allow destruction of valuable natural habitat, the siting of toxic waste dumps, landfills and other inappropriate activities that harm neighbors and communities.

“The good news is that bill did not get enough support to beat a veto,” said Cochran, “so the Senate should not follow this path. And if it does, we expect the President to veto such a special interest give-a-way.”