Supreme Court Grants Cert on Exactions

Hi Everyone--

I know I've been writing about all things criminal here, but now I am getting back to my first love: environmental law. I don't always have the luxury of following cases purely because they interest me, but at least now there's a headline grabber in the environmental law field.

Most of you are probably familiar with the general idea of a governmental "taking." The idea is that if the government deprives you of your property directly, you are entitled to compensation. Well, the same is also true in situations where the government does not take your property from you, but denies that you can use your property in a certain way. In such circumstances, you may be entitled to compensation as well.

So, what if you own land that is protected by state or federal law, because of the presence of an endangered specie, or because it is critical habitat for a wetland, etc? Perhaps you would like to develop this land, but the state or federal government has told you either that you can't, or that you have to meet certain criteria before you can act? This is the realm of takings, mitigation, and exactions.

An exaction is essentially a condition that is placed on the property, requiring the property owner to mitigate the expected harm caused by the development of their property. In two landmark cases (Nollan & Dolan), the U.S. Supreme Court has ruled that their had to be a logical connection between the restriction on the land, and the environmental harm the agency is seeking to avoid--this is the "essential nexus" test. Also, there must be a "rough proportionality" between the development's public benefit, and the burden being imposed. These criteria have been the basis for many takings cases in environmental law.

However, real property is unique, so any environmental impact, and each proposed restriction necessarily varies. This area of the law is not entirely settled, and new cases present new legal challenges. This past Friday, October 5, the Court agreed to hear the Koontz v St. John's River Water Management District case. The Supreme Court does not agree to hear many takings cases, so this is something somewhat special in environmental law. Here, the Court will decide two important issues: 1) whether or not an exaction occurs when the governmental agency has proposed the exaction; and 2) whether the Court's Nollan/Dolan test applies in cases beyond those that involve the public occupation of private lands.

I have not yet seen a date for when this case will be presented to the Court. However, it is likely that this will be a "hot topic" in environmental law circles. Perhaps this won't be met with quite the same excitement and press coverage as Health Care reform, but some of us will be watching to see what the Robert's Court decides.