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Richard Epstein: The Supreme Court's Mischievous Environmental Easement

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By Richard A. Epstein

In dealing with Supreme Court decisions it is dangerous to allow the questions that the Court deems worthy of review to set the intellectual agenda. That conclusion is especially true in property rights cases, where the Court is prisoner to its own defective jurisprudence, which all too often turns somersaults in order to steer clear of fundamental questions.

Just that pattern emerged clearly in the oral arguments made before the Supreme Court this past January 15, 2013 in Koontz v. St. John's Water Management District. As my earlier posts on Koontz have noted, the factual pattern in the case raises this fundamental issue: how sound is the doctrine of environmental mitigation? That doctrine, it will be recalled, allows the federal or state government to condition the grant of a development permit on the willingness of the landowner to "mitigate" perceived environmental damage stemming, we are told, from the construction itself, by providing some explicit collateral benefit to the government. That benefit could take the form of setting aside in perpetuity other lands owned by the developer as an environmental sanctuary. It could require a landowner to purchase for the state land that he does not own for exactly the same purpose. It could require that he either make repairs or otherwise pay money for environmental causes to which the government attaches positive value.

The use of these environmental easements is in most instances a no-lose situation for environmentalists. Accept the attached conditions and the government acquired something for nothing. Reject the condition and the status quo of no development takes place. This Hobson's choice should elicit all sorts of concerns on the simple question of whether real estate development should be regarded as a wrong that needs mitigation, or whether that doctrine should be understood as the largest and most unremarked land grab ever, which produces, as most land grabs do, serious social dislocations

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Manhattan Institute


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