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Fordham Environmental Law Journal




As one of the guarantees provided in the Bill of Rights, the Fifth Amendment's Compensation Clause restricts government's otherwise largely plenary power over privately-held property rights. While the Compensation Clause does not directly limit government's ability to change, modify, or even eliminate existing privately-held property rights, in certain instances it circumscribes government's ability to force individual property owners to bear the cost of such government-imposed changes. Specifically, for those government-imposed property redistributions found to be "takings" within the meaning of the Compensation Clause, the Fifth Amendment requires federal and state governments to compensate the property holder for the taking, and thereby shifts the cost of the taking from the property owner to the government and taxpayers generally. If, on the other hand, the change does not amount to a "taking," the Fifth Amendment will not require compensation, and will permit government to force the individual property owners to bear the burden of the cost of the government-imposed rights change.

In deciding whether to label any given government-imposed rights change a "taking," courts applying the Compensation Clause face one central question: who should bear the cost of the government's action? While a number of commentators, myself included, have suggested tests for resolving this question, this Article will focus on the so-called "harm-benefit" line as a means of separating those government actions requiring compensation from those that do not. As an answer to the central question of takings jurisprudence, the harm-benefit line suggests that the person who caused the problem should bear the cost of remedying it. As a result, if an individual exercises his or her property rights in a manner that is harmful, he or she should be responsible for remedying that harm. If government acts to prevent that harm by prohibiting a certain land-use, courts should not require compensation. But for the government action, the individual would have caused the feared harm. Therefore, forcing him or her to bear the cost of remedying or preventing the harm is just. On the other hand, if the individual has not caused the problem, he or she should not be responsible for remedying it. If government attempts to force the individual to solve such a problem, through a police power regulation or otherwise, then government is attempting to press private property into public service, and courts should require compensation.

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