The New "Takings" Executive Order and Environmental Regulation—Collision or Cooperation?
Editors' Summary: In 1987, the Supreme Court issued two blockbuster regulatory takings decisions. The decisions provide some much-needed guidance for deciding when government regulation constitutes a taking of private property requiring just compensation under the Fifth Amendment. However, the decisions have also raised concern among federal agencies about the takings implications of their actions. In response to these decisions, a presidential task force drafted an Executive Order, signed by President Reagan on March 15, 1988, that requires federal agencies to review their actions to prevent unnecessary takings and to budget for those actions that necessarily involve takings. The author, head of the Land and Natural Resources Division of the U.S. Department of Justice, describes the genesis of the executive order, its requirements, and how it might affect environmental regulation. He concludes that the Order can provide an orderly method to account for the takings implications of government regulation without necessarily hindering the vigorous enforcement of environmental laws.