- The high cost of feel-good laws: why bans on disposable plastic grocery bags are bad for the environment [Greg Rosalsky, NPR “Planet Money”] Not a good move for public health either [Hans Bader on New York’s second-in-the-nation statewide ban, following California] Enjoy your tepid pad thai: Maryland lawmakers move to ban polystyrene (Styrofoam) cups and containers for ready-to-go food [Michelle Santiago Cortés, Refinery 21]
- A future President who declared a national emergency over climate change might unlock some far-reaching powers [Jackie Flynn Mogenson, Mother Jones]
- “Waking the Litigation Monster: The Misuse of Public Nuisance,” 48-page report on attempts to legislate by means of novel public nuisance suits [Joshua Payne and Jess Nix, U.S. Chamber Institute for Legal Reform]
- Dim and dimmer: the Washington Post “argues that the policy of imposing energy efficiency standards on lightbulbs ‘has no downside.'” [Peter Van Doren, Cato; earlier] “Appliance Standards Are Expensive, And Regressive Too” [Susan Dudley, Forbes, earlier here, here, etc.]
- Supreme Court “should clarify that courts should consider a property’s prospective economic value when evaluating the just compensation due from regulatory takings” [Ilya Shapiro and Nathan Harvey on Cato amicus in Love Field terminal gate case]
- The “most expensive and least effective environmental law” of all: ideas for fixing NEPA, the National Environmental Policy Act of 1970, which mandates environmental impact statements [Mark Rutzick, Federalist Society]
A noteworthy victory for property owners in Brooklyn, following investigative journalism that had exposed a pattern of a seizures by New York City of homes and other properties after procedurally or substantively dubious findings of distressed condition or tax/water arrears. The city then sometimes handed the property over to politically connected developers. In the new decision, Kings County Supreme Court Judge Mark Partnow “ruled that the City of New York violated the U. S. Consitution in the seizure of six central Brooklyn properties, and ordered the city to give them back to their owners.” [Stephen Witt and Kelly J. Mena, Kings County Politics, earlier on the journalism]
Baltimore mayor Catherine Pugh has filed suit seeking to seize the famed Preakness Stakes race — trademarks, business deals, and all — through eminent domain. I’ve got a few things to say about that in Monday’s Wall Street Journal (paywall, sorry). Ilya Somin at Volokh Conspiracy has an analysis that quotes my piece.
For those just catching up with the underlying story, Pamela Wood covers it at the Baltimore Sun/Capital Gazette as does Robert H. Thomas at Inverse Condemnation. See also my 2014 Cato take on an earlier episode in Maryland’s history of “smash and grab” eminent domain methods.
- “Everything would be all renewable all the time if we could just pass the right laws.” The wishful underpinnings of the Green New Deal [Cato Daily Podcast with Caleb Brown and Regulation Magazine editor Peter Van Doren]
- “The U.S. rail system is optimized for freight, vs. European and Japanese systems that are optimized for passengers (it is hard to do both well with the same network). The U.S. situation is actually better, much better, for energy conservation.” [Coyote]
- Federalist Society discussions of climate litigation based on public nuisance theories: National Lawyers Convention panel with David Bookbinder, Eric Grant, James Huffman, Mark W. Smith, moderated by Hon. John K. Bush; “Originally Speaking” written debate with John Baker, Richard Faulk, Dan Lungren, Donald Kochan, Pat Parenteau, David Bookbinder; Boston Lawyers Chapter panel on municipal litigation with Steven Ferrey, Phil Goldberg, Donald Kochan, James R. May, Kenneth Reich] Climate nuisance suits have met with an unfriendly reception in American courts and there is no good rationale for filing copycat claims in Canada [Stewart Muir, Resource Works]
- “Public Universities Exploit Eminent Domain Powers with Little Oversight” [Chris West, Martin Center]
- Many pro-market reforms would reduce the risks to life and property from natural disasters, climate-related and otherwise [Chris Edwards, Cato]
- “On patrol with the enforcer of DC’s plastic-straw ban” [Fenit Nirappil/AP via Peter Bonilla (“Welcome to the worst ride along ever”)]
The Eminent Domain Just Compensation Act, introduced by Rep. Justin Amash (R-Mich.), would require the feds to pay at the time of taking, rather than long afterward, when taking land by eminent domain for the proposed border wall. “It is unjust for the government to seize someone’s property with a lowball offer and then put the burden on them to fight for what they’re still owed,” Rep. Amash said in a statement. “My bill will stop this practice by requiring that a property’s fair value be finalized before DHS takes ownership.” While the bill applies only to the Homeland Security Department, its principles could presumably be generalized through further legislation. [David Bier, Cato] Related: Ilya Somin, and earlier here and here.
- Playlist: songs about eminent domain and takings, property law and the road [Robert H. Thomas, Inverse Condemnation]
- In-depth look into problems that develop when title to land is held as “heirs’ property,” leaving a dangerous collective tangle in place of individual right and duty [David Slade and Angie Jackson, Post and Courier (Charleston, S.C.)]
- Dispute over remains of two dinosaurs locked in combat 66 million years ago, lately unearthed in Garfield County, Mont. and extremely valuable, hinges on whether their fossils are “minerals”; Ninth Circuit says they are under Montana law [AP via Molly Brady (“property professor dream hypo”), Murray v. BEJ Minerals]
- “Government Should Compensate Property Owners for Flood Damage It Facilitated” [Ilya Shapiro and Patrick Moran on Cato amicus petition for certiorari in St. Bernard Parish v. United States] “Texas Court Rules Deliberate Flooding of Private Property by State Government in Wake of Hurricane Harvey can be a Taking” [Ilya Somin]
- Constituent-group politics continues to shape use of federal lands, to the detriment of its economic value [Gary Libecap, Regulation and related working paper]
- Caution, satire: Facebook parody of super-intrusive, restrictive, and meddlesome HOA [East Mountain West View Home Owners Association]
- So many private actors, from Michael Bloomberg on down, helped steer New York AG office to sue Exxon [John Solomon, The Hill; Tom Stebbins, Crain’s New York Business; Francis Menton, RealClearEnergy; earlier here, here, here, here, etc. ] “Whatever the merits of the plaintiffs’ policy objectives, their campaign to circumvent the political branches poses a serious threat to the rule of law and the constitutional principle of separation of powers.” [Jim Huffman, Quillette] “Emails Show Law Firm Pitched San Francisco on Idea of Suing Energy Producers” [Todd Shepherd, Free Beacon]
- Supreme Court heard oral argument last month on the dusky gopher frog habitat case, Weyerhaeuser v. U.S. Fish & Wildlife Service [Faimon Roberts, The Advocate; Rick Hills, PrawfsBlawg; earlier here and here]
- High court has ordered reargument on cemetery-trespass takings case Knick v. Township of Scott, Pennsylvania [Gideon Kanner; earlier here, here, here, and here; Ilya Somin and more and yet more on what’s at stake]
- Reduction or no, damage award against Monsanto in Roundup/glyphosate case is likely headed to appeal [Helen Christophi, Courthouse News and more, earlier]
- Behind push for European regulatory crackdown on cadmium levels in fertilizer, “a Russian fertilizer giant that has ties to the Kremlin” [Matt Apuzzo, New York Times]
- “No, LaCroix Isn’t Poisoning You Like You’re A Giant Cockroach” [Christie Aschwanden, Five Thirty-Eight, earlier] There’s Drano in your eye drops, and it’s okay to relax about that [Josh Bloom, ACSH]
- Bayer seen as likely to get new trial on punitive-damages side of glyphosate/Roundup loss [Jim Christie and Ludwig Burger, Reuters, earlier]
- Supreme Court declines to review California judgment finding that long-ago advertising of lead paint created public nuisance for which makers are now financially liable [Greg Stohr/Bloomberg, Donald Kochan/Federalist Society, John Sammon/NorCal Record]
- When if ever can you get into federal court with your takings claim? Oral argument in the Knick v. Township of Scott case [Miriam Seifter/SCOTUSBlog, Gideon Kanner, Robert Thomas/Inverse Condemnation first, second, third, fourth posts]
- “Stop trying to get workers out of their cars” [Robert Poole, Jr./Reason]
- “U.S. Supreme Court Refuses to Halt Teenagers’ Climate Lawsuit” [Greg Stohr/Bloomberg] “The European Court of Justice has recently ruled that ten private citizens, from Portugal, Germany, France, Italy, Romania, Kenya, Sweden and Fiji can sue the European Union for negligence in its inaction on climate change.” [Theodore Dalrymple, Law and Liberty]
- “Trump’s EPA is having a hard time in federal court” [Jonathan Adler]
Simone and Lyder Johnson say they
were drawn to Ponce Inlet, Florida, where they bought land and made plans to construct their dream home. Sensing that the town may be able to benefit, Ponce Inlet persuaded the Johnsons to expand their plans into “a delightful mixed-use waterfront development.”
Over several years, the Johnsons bought additional parcels while working hand-in-hand with the town. They were amenable to providing everything the town asked for, like a nature preserve and boat slip. After millions of dollars were spent, the town changed its mind, halted all work, denied permits, and went so far as to pass legislation prohibiting all development on the Johnsons’ property.
Under current regulatory takings law, government is hardly ever required to pay compensation when it forbids the use of land. Is the injustice in this case extreme enough to tempt SCOTUS to revisit the issue? [Ilya Shapiro, Trevor Burrus, and Meggan DeWitt on Cato certiorari brief in Pacetta v. Ponce Inlet]
And a reminder to mark your calendar: Cato’s 17th annual Constitution Day is coming up Monday, September 17. Details and registration here.