A 5-4 ruling of the U.S. Supreme Court, in Knick v. Township of Scott, threatens the California Coastal Commission’s ability to oversee land and water use in the coastal zone and to ensure public access to beaches and oceanfront. But not right away. The activist conservative ideologues that form the 5-man Republican majority on the Court – in lockstep with the conservative legal movement – are playing the long game. The four Democratic justices in the minority of the Court’s most significant 5-4 decisions (which will continue inexorably for the foreseeable future), understand the long game, and are responding with increasingly furious dissents as the majority overturns longstanding precedents.
The case at hand is nothing special: a property owner’s dispute regarding a land use decision by a local government. The decision overturned a 1985 ruling – and decades of previous precedents – that required property owners to seek redress in state courts (when state and local land use decisions were in dispute) rather than in federal court. In Knick v. Township of Scott, the majority ruled that property owners in land use disputes could bypass state courts and proceed immediately to the federal courthouse.
The common law concept of eminent domain is a sovereign power of the state to ‘take’ property – chiefly to purchase land for public use (to build a highway, a city hall, or an aqueduct, for instance). States may also impose averse restrictions on property to protect public interests (such as to ensure sustainable development along California’s coast), a regulatory taking. Takings are pervasive at the federal, state, and local levels – and have existed since before the Constitution was ratified. In the 19th century, the taking of private property was instrumental in construction of transcontinental railroads.
The law and practice in this area is so well established that the prospects for successfully resisting takings in state courts are severely limited. So the conservative legal movement has focused for decades on capturing the federal courts, in this case with some creative legal theories regarding the Constitution’s Takings Clause.
The Takings Clause (the last lines of the Fifth Amendment) reads in full: “nor shall private property be taken for public use, without just compensation.” The conservative legal movement (including the Federalist Society, which can take the lion’s share of credit in the seating of the five-member ideological conservative majority on the Supreme Court) has pushed since the Reagan era to change Constitutional law so that the property rights of individuals trump the authority of government to interfere with those rights, as the California Coastal Act has done successfully.
David Savage in the Los Angeles Times noted the environmental implications of this ruling for California, which has strict regulations restricting development in cities and on the coast. Based on the Coastal Commission’s considerable influence and the persistent challenges it has faced since its inception, the biggest target of movement conservatives, in my view, is the California Coastal Act of 1976.
In fall 1972, California voters passed Proposition 20, which established the California Coastal Commission. Under Prop 20, the Commission’s authority was to expire in four years; the legislature made the law permanent when it passed the California Coastal Act of 1976. Environmental advocates have found reason to criticize the Commission from time to time. (The Coastal Commission, for instance, approved construction of an estate, featuring five houses, in the mountains overlooking the Pacific for U2 guitarist The Edge, aka David Evans. But Evans lost his latest battle to build with the victory going to the Sierra Club, which opposed the Commission’s approval. In March this ruling was described by the Malibu Times as the “nail in the coffin” for Evans’ plans after a 14-year legal battle. Rest assured, he will appeal to federal court now.)
On the whole, despite the criticism, the Coastal Commission has been extraordinarily successful in protecting the California coast from unsustainable development. (In the Evans’ case, it acted to establish compliance with previous setbacks it had suffered in court.) While its efforts to ensure public access to beaches where very rich people live have been less successful – with court battles dragging on for decades, creating legal stalemates – it has continued its efforts on behalf of the public, often (if not always) winning.
Throughout the past four decades, the Commission’s authority has been under fierce attack by conservatives, who oppose environmental regulations and regard the Commission’s strict environmental rules as draconian. The Act has withstood most significant legal challenges, because it was well crafted to conform to precedent and established law.
That changed with this week’s ruling in favor of Rose Mary Knick, the client of the Pacific Legal Foundation, which has been on a quest to get federal courts to reinterpret the Takings Clause for decades. This ruling is hardly PLF’s first victory at the high court, but it is potentially its most far-reaching victory to date.
This ruling is troubling because if every land use dispute becomes a federal case, with a Supreme Court majority comprised of conservative ideological activists, then the authority of government to enact and enforce environmental regulations will be subject to challenge. The legal basis for environmental protections has suddenly become much less secure. Not only the California Coastal Act, but the Clean Air Act, the Clean Water Act, the Environmental Protection Agency, the Endangered Species Act, and much else are all at risk of being ruled unconstitutionally burdensome – a violation of the Takings Clause.
Last month, in a post about two recent Supreme Court cases, I wrote about the expansive agenda of the aggressively activist conservative SCOTUS majority. The five Republican men comprising the court’s majority have sidestepped textualism and originalism (to which they sometimes pledge allegiance) and rejected the conservative legal principle stare decisis. Rather than reliance on the Constitution, or devotion to legal principle, the majority appears committed to results-oriented jurisprudence—consistent with the Republican Party’s wish list.
In the second case, Franchise Tax Board v. Hyatt (which overturned Nevada v. Hall), Justice Breyer expressed concern, in light of the majority’s disregard of stare decisis, about future rulings of the court:
“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”
In Knick v. Township of Scott, Justice Kagan objected in her dissent: ‘Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens.’
She referenced Breyer’s dissent in Hyatt:
Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent…. He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect…. He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
Then Kagan concluded, “Well, that didn’t take long. Now one may wonder yet again.”
While I have focused on the consequences for environmental law – and the threat to the California Coastal Commission – the implications of this ruling are far broader.
This reinterpretation of the Takings Clause also threatens workplace-safety regulations, progressive taxation, and employee rights. As I wrote last month, this activist conservative majority may be ushering us into a new Lochner Era, when federal rules and regulations did not impede business or corporations. With the latest 5-4 ruling, the court takes us a step closer to overturning federal authority to ensure that we have clean air and water, safe workplaces, consumer protections, and the right to union representation.