"Money or Nothing" - FSU Takings Conference Paper:

Like Ilya, I will be presenting a paper this weekend at the Florida State University conference on "Takings: The Uses and Abuses of Eminent Domain and Land Use Regulation." Whereas Ilya will be focusing on eminent domain, I will be focusing on regulatory takings, specifically questioning whether environmental values are served by denying landowners compensation for the costs of environmental land-use controls that deny them the productive use of their land. My paper is titled "Money or Nothing: The Adverse Environmental Consequences of Uncomepnsated Regulatory Takings." I have not yet posted it on SSRN (or elsewhere) because there are still a few rough patches I'd like to fix, but I've reproduced the working version of the abstract below:

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. Yet there are reasons to question this assumption. Economic theory and empirical research both demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. At the same time, failing to require compensation means that land-use regulation is "underpriced" as compared to other environmental protection measures for which government agencies must pay. This results in the "overconsumption" of land-use regulations relative to other environmental protection measures that could be more cost-effective at advancing conservation goals than uncompensated land-use regulations. While any specific compensation proposal would present implementation questions, there are reasons to believe that a compensation requirement could produce net benefits for environmental conservation.

Related Posts (on one page):

  1. "Money or Nothing" - FSU Takings Conference Paper:
  2. Presentation at the Florida State University Conference on Takings:
My paper is titled "Money or Nothing: The Adverse Environmental Consequences of Uncomepnsated Regulatory Takings."

What, no "chicks for free"? I can already tell it's a bust. ;p
4.18.2007 11:13pm
Mox (mail):
wow... first commenter catches the Dire Straits reference. Must be an old crowd on here.
4.18.2007 11:38pm
Jim FSU 1L (mail):
O RLY? You would think this would have made the announcements.
4.18.2007 11:50pm
Arete13 (mail):
Yeah, I am a Sr. undergrad @ fsu and going to law school. Do you know where this will be held?
4.18.2007 11:57pm
Jake (Guest):
I'm going to have to contradict the previous posters and guess that the title is actually a Bivens reference.

Is the main claim that people have a right to be compensated for environmental regulatory takings, or that they should be compensated as a policy matter?

If there's a right to compensation, how do you distinguish compensation for environmental restrictions from compensation for zoning restrictions generally?

If it's a policy question, it seems to me that while total social utility might be maximized by compensation (fixing the overconsumption problem), total environmental utility will go down, as a useful environmental tool is no longer available at a discount. Is this not the case? Or should we care more about social utility than environmental utility?
4.19.2007 12:43am
Truth Seeker:
One thing I have not been able to figurre out is if I can't cut down a tree on my own property without planting another tree or trees of equal diameter or paying the state to plant them elsewhere, when did the state take ownership of my trees on my land? What if my grandfather planted it and I inherited the land? When did my family's tree become government property that I must pay to destroy?

At the point when my tree became the government's, why wasn't I paid just compensation for it? The neighbors may like my tree but they should be required to pay me for them if they take them.

Has this ever been litigated? I've been wanting to take a case like this but someone must have already tried. It seems a clear a clear taking without compensation. What crazy ass liberal theory transferred my tree to the community without compensation?
4.19.2007 12:51am
Andrew Okun:
What crazy ass liberal theory transferred my tree to the community without compensation?

Is this a figurative tree and you're referring to environmental law in general, or is there a specific Tree Seizure Act that you are asking about?
4.19.2007 1:22am
Andrew Okun:
Some thoughts just from reading the abstract.

1. The terminology "uncompensated regulatory takings" seems to echo the constitutional argument made, and lost, elsewhere, when the case you are making is a stronger, economic one. If the property isn't being seized outright, it ain't no taking. It's just "land use regulation."

2. That compensation would involve some niggly little "implementation" issues makes light of a vast problem. The compensable value of a land use regulation is nearly impossible to define. If "no lumber cutting here" regulations cost a property owner the timber income, but make the valley a magnificent place to live, increasing property values including the affected property, what do we add or subtract? Is it the maximum theoretical use? Can we charge for benefit? Where do we get to subtract for the landowner's reasonable expectation that land use regulation is going to happen, since it's been happening forever? If zoning regs have long barred the raising of chicken, goats, pigs and kine in the residential areas of Culver City, but are updated to bar the raising of ostriches and llamas, does every single property owner in Culver City get to be compensated for the loss of his or her llama and ostrich farming rights? Does that depend on planned llama farming, viable llama farming, active llama farming? The assessment of compensation is an impenetrable swamp; rather than accurately pricing environmental regulations it will prevent them being priced at all because no sane official is going to go in there without a map and there won't be one.

3. Requiring compensation is very different from compensating. I assume the studies you refer to indicate that regs lacking some compensation influence conservation behavior, which I'm sure is true. I.e. people killing endangered animals to prevent their property being listed as habitat. The answer to this you should compensate people, not require compensating people. If you are going to bar tree-cutting to save owls, and you don't compensate, people will shoot the owls so they can keep cutting trees. If you bar tree-cutting, but include reasonable compensation, having included the property owners in the politics of regulation (a la Bruce Babbitt), then you may have much greater conservation utility, so it is a good idea. But if you start by requiring compensation for regulation, then the property owners can use the threat of that requirement, and even more so the uncertainty of the size of that requirement, to extract compensation from the regulators in an amount unconnected with environmental utility and dependent a host of hard to define factors. What do you want to bet a whole bunch of landowners become timber barons overnight?

Enviros should get used to the idea of including property owners in planning and buying or compensating for rights they affect, and most important in being right when they make a case for regulation. Landowners should get used to the idea that their land use is liable to continue being regulated in various ways as it has for a couple dozen centuries already.

The premise for environmental regulation is that it prevents damage that harms us all; when debating the merit of a regulation that purports to prevent such damage, it is an imbalance to put hurdles in the way of regulators and none in the way of property owners.

Compensating, perhaps good. Requiring, not so much.
4.19.2007 2:02am
Truth Seeker:
Is this a figurative tree and you're referring to environmental law in general, or is there a specific Tree Seizure Act that you are asking about?

I guess it is state or local laws rather than a federal one. But I've heard of several areas where you are not allowed to cut down your own trees without paying the local government the cost of planting equivalent trees elsewhere. One for sure in Pinellas County, Florida.
4.19.2007 2:05am
Andrew Okun:
One for sure in Pinellas County, Florida.

Ah, mangroves. Is that what you are referring to? A mangrove tree is not just any old tree. Mangroves have a serious role in how the Florida coastline works, erosion, fisheries, habitat, water quality and the rest. When the county commissioners make rules about mangroves, they have more than a rational basis for doing so.

It may be that, following Jonathan's reasoning, Pinellas County should be reasonable with its waterside homeowners in order to be fair and to encourage good conservation. I know little about it and it may be that the commissioners were unfair about it all. But land use regs like that are not based on a recently thought up "crazy ass liberal theory." Regs like that have been around forever.
4.19.2007 2:40am
zhongliu (mail):
4.19.2007 3:11am
Truth Seeker:
Ah, mangroves. Is that what you are referring to?

No, not mangroves, an old oak tree in my back yard, 3 feet in diameter, ugly and full of dead branches. They said I'd have to pay so much per inch if I cut it down so they could plant other trees in the county to replace it. It would have been over $1000. Why do I have to pay to cut down a tree in my yard. They never paid me to get the right to charge me for it.

Luckily it just died and an arborist said it needed to be taken out. But how could they "take" my tree and make me pay them to cut it doen?
4.19.2007 4:04am