By the close of the 20th century, this nonfederal experimentation was in serious jeopardy. This is because one legacy of the Reagan years proved to be a significant barrier to the growth and even continued vitality of state and local environmental activity: President Reagan and his successor, President George H.W. Bush, remade the federal judiciary, particularly the Court. One key and controversial contribution to American jurisprudence made by the new conservative majority on the Court was the reinvigoration of the Takings Clause, a move that has posed serious problems for a wide range of environmental regulations promulgated and enforced by local and state officials.
State and local floodplain controls, wetlands restrictions, coal mining regulations, beach access easements, bicycle paths, coastal development bans, endangered species protections, and open-space ordinances have all been subjected to regulatory takings analysis, and some of these regulations have fallen as a result of increased and heightened judicial scrutiny.
A study of the leading regulatory takings cases included in this chapter reveals the Court’s tension between nonfederal environmental regulation and private-property rights protection. For several years following the Court’s invocation of Justice Holmes’ opinion in Pennsylvania Coal, discussed at the end of Chapter Three, the Court avoided deciding the substantive question of whether, in fact, a regulation that went “too far” effected a taking that required compensation from the government. In 1987, the new Chief Justice, William H. Rehnquist, writing for the Court in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 321 (1987), answered that question affirmatively, assuming for the purpose of the appeal that the challengedrestriction (local floodplain controls) deprived the landowner “of all use of [his] property.”
