Can regulatory takings litigation cause a chilling effect? A study of law and federal environmental regulation

The classical story of regulatory takings litigation, which demands compensation under the Fifth Amendment from regulatory agencies which restrict property use and/or development, predicts that such litigation can cause a chilling effect, or a reduction in an agency's regulatory output, to offset and/or avoid such compensatory demands. Such predictions are based on assumptions rooted in economic analyses of law and regulatory behavior. Quantitative, qualitative, theoretical, and legal analyses were conducted on takings litigation involving two federal environmental programs, the Endangered Species Act and the Surface Mining Control and Reclamation Act, to test the acceptability of such assumptions. By interpreting such litigation through the lens of legal pluralism, an anthropological approach to the study of law when multiple legal traditions exist in the same space and time, the nature of takings litigation as a dialectic and hermeneutic evolution between the constitutional codification of property rights and the common law traditions of nuisance and public welfare is revealed. Regulatory takings law is, therefore, not an economic equation determining some restrictions compensable and others not; it is a fluid body of law, heavily determined by contexts of meaning which, themselves, change over time and place. From this perspective, the perceptions of regulatory agents become central, as the likelihood of a chilling effect is dependent upon their perceptions of their own powers and responsibilities under takings jurisprudence and their enabling statutes. Interviews with such personnel revealed that any chilling effect caused by takings litigation must overcome institutional constraints which shape those agents' perceptions and awareness of takings and environmental legal rights and responsibilities. These institutions include the external and internal fragmentation of regulatory decision-making, the presence of an agency culture of enforcement, the particulars of the relationship between the regulators and the regulated, and the effect of a maintained regulatory presence of the program, shaping the perceived acceptability of property restraints necessary for successful implementation.Ph.D.Includes bibliographical references (p. 238-245)