Just Compensation for Per Se Environmental Takings

Changing social conditions and heightened awareness of environmental conditions have led to a dramatic increase in land regulations. This Comment will further focus on and explore takings claims based-on environmental surveillance. Under the Comprehensive Environmental Response & Liability Act (CERCLA), the Environmental Protection Agency (EPA) has authority to gain access to real property and conduct tests, some of which require both the removal of soil and installation of monitoring devices. Affected property owners have, in the past, challenged environmental surveillance as an unconstitutional taking. While some landowners have been successful, others have not. This Comment will conclude that the current analysis of takings claims based on the physical occupation of private property must continue to be treated as per se compensable. However, this Comment will ultimately advance the theory that the compelling government interest in regulating and treating hazardous wastes requires a non-traditional approach to calculating what just compensation should be