Private Property Rights and the Environment After Palazzolo

Abstract

With the ascendancy of environmentalism in American law has come a renewed focus on private property rights. That in turn has rekindled the debate over whether our ability to use private property is a fundamental right rather than an essentially revocable right that derives from the government. This debate was recently played out in Palazzolo v. Rhode Island where the United States Supreme Court addressed several elements of regulatory takings doctrine: When is a claim against government ripe? Does an acquirer of already regulated property have the same rights to challenge the regulation and bring a takings claims as the owner at the time the regulations were adopted? Whether there can be a regulatory taking if some use and value remains in the property, albeit a greatly diminished use and value, or if use and value is diminished on only a portion of a property.

This Article focuses on these questions in light of the Supreme Court’s holdings in Palazzolo, as potentially modified in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency. Attention will be focused on the role that environmental protection concerns play in determining whether a regulation constitutes a regulatory taking, including a discussion of wetlands and the public trust doctrine.