[Ilya Somin (guest-blogging), April 5, 2006 at 12:16am] Trackbacks
The Green Costs of Kelo:

Barrels of ink have already been spilled over the Supreme Court's narrow 5-4 decision in Kelo v. City of New London, including some by yours truly. In "The Green Costs of Kelo: Economic Development Takings and Environmental Protection," environmental law professor Jonathan Adler and I have now put together the first article to systematically examine Kelo's implications for environmental policy. It is available here, and currently under review by journals.

We argue that the Supreme Court's decision to allow government to condemn property for transfer to other private parties in order to promote "economic development" may well harm the environment. In particular, private conservation land (an increasingly important tool for protecting environmental amenities and wildlife) is likely to be targeted for condemnation by developers and their allies in local government because conservation property contributes little to development and is usually not subject to property taxes. Allowing economic development condemnations also harms the environment in several indirect ways that we detail in the paper.

Some environmentalists fear that forbidding economic development takings would undermine the use of eminent domain for environmental purposes. Jonathan and I show that these fears are probably groundless. Not even the hint of such a trend has arisen in the nine states where economic development condemnations are banned by state constitutional law. And nearly all environmental takings can easily be justified under one of several legal rationales that would remain intact even if economic development takings are banned.

I won't go into the legal nitty-gritty here. But constitutional law, property, and environmental policy buffs are welcome to read about it in the paper and give us your thoughts.

Others are, of course welcome to comment as well. Though if you want to address the technical legal issues, I hope you will at least skim the paper first.

UPDATE: To avoid confusion, it is important to note that the paper discusses the consequences of the Kelo majority's decision to permit economic development takings as opposed to banning them. We argue that the latter approach is, overall, superior from an environmental point of view. Accordingly, it makes no difference to our thesis that the Supreme Court's pre-Kelo jurisprudence also did not ban economic development takings, a point that is acknowledged in the paper itself. It is still the case, or so we argue, that banning economic development takings, as several states have done, would be preferable from an environmental point of view (as well as for other reasons).