Disaster Tradeoffs: The Doubtful Case for Public Necessity

Abstract

When government takes private property for a public purpose, the Fifth Amendment to the U.S. Constitution requires just compensation. Courts, however, have long recognized an exception to takings law for the destruction of private property when necessary to prevent a public disaster. In those circumstances, unless the state accepts an obligation to pay damages, individuals must bear their own losses. This Article contends that the public necessity defense should be rejected. First, the tight time frame and limited options typical in a disaster response threaten to obscure the crucial role of government in planning for disasters and mitigating vulnerability. Second, and more fundamentally, the deliberate infliction of harm remains wrongful, even if all available alternatives are worse and the situation could not have been averted or ameliorated through proper advance planning. A just compensation rule—whether instituted via statute or judicial reinterpretation of the Fifth Amendment’s Takings Clause—would preserve the government’s emergency powers while reaffirming the rule of law and advancing the interests of social justice.