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The numbers in the text and tables of this study may not add up to totals because of rounding. Cover photos courtesy of the Fish and Wildlife Service and Kay Hager. |
The takings clause of the Fifth Amendment to the U.S. Constitution states "nor shall private property be taken for public use, without just compensation." Some Members of Congress believe that the enforcement of this requirement is inadequate and that statutory measures are needed to both reduce the infringement of private property rights resulting from government regulation and ensure compensation in the event of such infringement. A variety of legislation has been proposed in recent sessions of Congress to achieve those goals. This study examines those proposals and their possible consequences. The Congressional Budget Office (CBO) prepared it at the request of Senator John Glenn, Ranking Minority Member of the Committee on Governmental Affairs. In accordance with CBO's mandate to provide objective and impartial analysis, the study contains no recommendations.
Robert Hunt, formerly of CBO, and Timothy VandenBerg of CBO's Natural Resources and Commerce Division wrote the study under the supervision of Jan Paul Acton and Roger Hitchner. The authors would like to thank Gail Del Balzo, Pete Fontaine, Tim Lasocki, Paul Menchik, Deborah Clay-Mendez, Carl Muehlmann, Beth Pinkston, Deborah Reis, Jennifer Smith, Elliot Schwartz, Anne Toohey, and David Torregrosa, all of CBO, for their valuable assistance. The study also benefited from the contributions of many people outside CBO. Among them were Timothy Dowling, James Eaton, William Fischel, Ralph Heimlich, David Lampen, Eric Olson, Joseph Sax, Keith Weibe, and Lance Wood. Special thanks are owed to Robert Meltz for his valuable comments on the legal and jurisdictional issues surrounding regulatory takings.
Leah Mazade edited the manuscript, and Chris Spoor proofread it. Rae
Wiseman typed the many drafts. Kathryn Quattrone prepared the study for
publication, and Laurie Brown prepared the electronic versions for CBO's
World Wide Web site.
June E. O'Neill
Director
December 1998
TWO - REGULATORY TAKINGS: THE STATUS QUO
THREE - INCREASING ACCESS TO COMPENSATION
FOUR - INCREASING ACCESS TO FEDERAL COURTS AND ENCOURAGING SETTLEMENTS
FIVE - AUGMENTING REQUIREMENTS FOR AGENCY TAKINGS ANALYSES
SIX - PAYING COMPENSATION AWARDS FROM AGENCY BUDGETS
SEVEN - ESTIMATING THE COST OF EXPANDING ELIGIBILITY FOR COMPENSATION
| TABLES | |
| 1. | Selected Takings Claims Pending Against the United States, by Regulatory Program or Type of Regulation, 1997 |
| 2. | Outcome of Takings Claims in the U.S. Court of Federal Claims, Fiscal Years 1992-1997 |
| 3. | Takings Claims Handled by the U.S. Court of Federal Claims, by Department or Agency, Fiscal Years 1992-1997 |
| 4. | Wetlands Converted to Agricultural Uses, Urban Development, and Other Development, 1954-1995 |
| 5. | Estimated Reductions in Property Values, by Selected Declines in the Wetlands Conversion Rate Because of Federal Restrictions |
| 6. | Estimated Reductions in Property Values, by Selected Shares of the Decline in the Wetlands Conversion Rate That Are Attributable to Federal Restrictions |
| FIGURES | |
| 1. | Average Annual Net Loss of Wetlands, 1954-1992 |
| 2. | Takings Cases in the U.S. Court of Federal Claims at the End of the Fiscal Year, 1992-1997 |
| 3. | Changes in the Value of a Property Caused by a Regulatory Program |
| 4. | Illustrative Comparison of Compensation Awards Under the Courts' Jurisprudence and Under Proposed Statutory Eligibility Criteria |
| BOXES | |
| 1. | A $200 Million Taking--The Claim of Whitney Benefits, Inc. |
| 2. | The Diversity of Government Actions That Have Led to Successful Takings Claims |
| 3. | What Is the "Fair Market Value" of a Property? |
| 4. | Choosing a Reduction-in-Value Threshold |
| 5. | Florida Rock Industries, Inc. v. United States |
| 6. | Assumptions for CBO's Illustrative Estimates |
