Takings Legislation
Status
"Takings" legislation refers to the Takings Clause in the Fifth Amendment to the U.S. Constitution, which declares "private property shall not be taken for public use without just compensation." For most of our nation's history, this clause has required compensation only where the government takes full ownership of a property. Lately, however, this clause has been used to require compensation when an environmental regulation reduces the value of property or makes any part of a parcel of property unusable. Such compensation would require billions of dollars in taxpayers expenditure every year and would elevate property rights above the common good. Opponents of environmental regulation have used takings legislation to weaken environmental protections, such as the Endangered Species Act or the Clean Water Act.
Recently, the property rights movement has taken the position that the Takings Clause requires more robust protection of landowners from the government. In a recent series of decisions, the Supreme Court determined that the Takings Clause does, in fact, require compensation in cases where environmental laws have diminished property rights. Advocated os property rights argue that even this expanded interpretation does not protect landowners enough. They have proposed federal and state legislation that would substantially go beyond the Supreme Court's interpretation and cost the taxpayers billions of dollars in compensation for the right to clean air and water and endangered species protection. This would make the enforcement of many environmental laws nearly impossible.
This Congress, a few dangerous takings bills are already under consideration in the House and Senate. None of these bills are moving with any speed through the Congress. It is likely that takings will come up many ways this Congress, whether in riders, reform of the Endangered Species Act, or attacks against the Administration's efforts to protect the environment. Please urge your Senators and Representative to publicly oppose all takings bills.
Legislative Summary
A number of bills dealing with takings issues have been introduced in this Congress. For example, in the House Representative Don Young (R-AK) introduced H.R. 1142 , which would add broad new takings language to the Endangered Species Act. Representative John Sweeney (R-NY) introduced H.R. 294, identical to the bill introduced in the last several Congresses by former Representative Solomon. This bill would require federal agencies to prepare takings impact analyses.
The greatest takings threat began in the Senate when Judiciary Chair Senator Orrin Hatch (R-UT) introduced the "Citizen's Access to Justice Act," S. 1028. This bill would give takings claimants direct access to federal court, overriding the local court. One of its many serious ramifications is of environmental justice: a poor community will have far more difficulty bringing a large industry to federal court than a local court within their community. Another component of the bill would threaten local zoning and other safeguards for public health, safety, and welfare. Under the bill, small counties, towns and cities would face unjustifiable federal court challenges to laws that do not "take" any property rights. Contrary to established Supreme Court Constitutional rulings, S. 1028 attempts to allow these "takings"claimants to avoid zoning appeal procedures and state court precedents. This essentially means that "takings" lawsuits could skip the state court processes and go directly to federal courts, thus flooding the federal courts with local property rights cases. The resulting premature, expensive federal court litigation would pressure communities to abandon a wide variety of fundamental local safeguards.
The Senate bill could be marked up before the Judiciary Committee on Thursday, July 27, 2000, After the Congressional recess, the bill could come to the floor early in September. On March 16, 2000, the House of Representatives voted 226-182 to approve S.1028's companion bill, the "Private Property Rights Implementation Act of 1999" ( H.R. 2372 ).
Additionally, another bill, S. 246 , introduced by Senator Chuch Hagel (R-NE) and co-sponsored by Senator Tim Hutchinson (R-AR), would establish complicated standards and procedures for federal agency preparation of taking impact analyses.
Position of the Reform Jewish Movement
In 1995, the Central Conference of American Rabbis (CCAR) adopted a resolution which reaffirmed its support for "the positive role that government can play in civil rights, health, safety, education, and environmental protection for all persons." It "oppose[d] the categorical elevation of property rights above all others, because... benefits to society have accrued when property use is appropriately regulated, such as in protecting... the environment."
During the last session of the 105 Congress, the National Religious Partnership for the Environment — through which the Reform Movement, via the Coalition on the Environment and Jewish Life (COEJL) , joins with the U.S. Catholic Conference, the National Council of Churches of Christ, and the Evangelical Environmental Network — issued a letter calling on Congress to oppose the "Citizen's Access to Justice Act" because "it elevates property rights above all other rights, instead of setting them in the context of the common good of our society."
Takings Legislation and Jewish Values
Jewish tradition has long recognized not only the importance of government, but also the positive role that governments can play in establishing a society of tzedek v'shalom, justice and peace. Since the Talmudic era, our community has created and supported public institutions and governmental bodies designed to protect the common good, recognizing that individual rights need to be carefully balanced with communal responsibilities. Thus, for example, Jewish communities have for over 1500 years instituted a series of regulations to provide adequate health care, education, and environmental health hazard protections for all their residents. Under such principles as "hefker bet din hefker" (that which the courts declare ownerless is ownerless), the government can regulate the use of what is generally considered to be private property if a substantial communal benefit is expected.
The history of Jews in the United States and Canada has reinforced these commitments. While we have witnessed abuses of governmental power, we have also experienced our government's ability to "establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." The Reform movement has long appreciated and supported governmental efforts to protect civil rights and liberties, health, safety, education, and the environment.
For More Information
To learn more, contact RAC Legislative Assistant Rachel Cohen or visit the following websites:
Last Updated July 24, 2000
