pageok
pageok
pageok
[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).

Jake:
One of the arguments against a strong takings jurisprudence is that homeowners represent a politically powerful interest group (concentrated, highly motivated, etc.). Thus, they can generally extract "just compensation" through the political process without any need for judicial intervention.

It seems to me that this argument is even stronger in the context of a taking of an environmental preserve--environmental groups are generally well financed (particularly environmental groups that own large tracts of land) and able to fight political battles. They also get the added bonus of the general public's positive feelings about environmental preservation in general and nearby open spaces in particular. Is there any reason to suspect that owners of environmental preserves will be unable to derail political coalitions bent on taking their land?
4.5.2006 3:14am
Ilya Somin:
The key question is not whether homeowners or environmentalists in general have a lot of political power, but whether those who are targeted for condemnation do. By the same analysis we could argue that the press doesn't need First Amendment protection because media interests as a whole have a lot of political power. In both situations, what matters is not whether the category taken as a whole is powerful, but whether the particular members targeted by the government are.

In general, property owners targeted for takings tend to be poor or politically weak, which is why such takings do often occur and usually succeed, at least in the absence of judicial intervention. In the case of conservation trusts, there are numerous areas where they are locally unpopular for various reasons or are owned by groups with little political leverage.
4.5.2006 3:57am
Steve:
Does your paper address the fact that the courts had allowed government "to condemn property for transfer to other private parties in order to promote 'economic development'" long before Kelo?

I don't understand how you could identify a single taking anywhere in America that would have been impermissible before Kelo but is impermissible now, including the very Kelo taking itself. It was the petitioners in Kelo who sought to overturn precedent, after all. The respondents hardly needed an extension of the law to uphold their taking.

Anyone who doubts the truth of what I am saying should read Professor Merrill's excellent amicus brief submitted in Kelo.
4.5.2006 9:34am
Cornellian (mail):
I'm not sure ink is ever stored in barrels.
4.5.2006 10:04am
Anonymous Jim:
"In the case of conservation trusts, there are numerous areas where they are locally unpopular for various reasons or are owned by groups with little political leverage."

It seems to me this would be an important point to make in your article. (I read most of Part II but if you mentioned it there, I missed it.) The private conservation efforts that I am aware of locally (on the outskirts of Columbus, OH) are all either supported strongly in the community and/or have the backing of some fairly big guns in the community.

In the aftermath of Kelo I read somewhere (heck it may have been here at the VC) that some conservation efforts in the NE are funded by "absentee" supporters and are sometimes resented by locals as outsiders buying up land. If that is the case, I think you have a good argument. However, for those conservation efforts which enjoy community support, no sane developer would pick the fight, especially when there is some handy farmland nearby.
4.5.2006 10:07am
DC Lawyer (mail):
Steve makes a good point. Kelo changed nothing that wasn't already going on since at least Berman and Midkiff. I realize its a great rallying cry for the property rights movement, but legally, its much ado about nothing.

But here's a different issue that your paper might address. In the environmental community there is growing concern about the permanence and enforceability of conservation easements. In part this stems from the multitude of small land trusts that often hold easements and often the lack of a statewide registry to recognizing and enforcing where easements occur. There is a real concern that easements may be forgotten or ignored by subsequent landowners.

The question of condemnation of easements is another one that the land conservation community has not adequately considered. The Nature Conservancy probably has the pockets and manpower to defend its properties against a condemnation attempt, but I submit that most local land trusts do not. What is to stop a city or county from condemning parkland or open space to further development goals.

That's part of the problem of being an environmentalist, and I work in the movement full time. Our "wins" are never permanent. The development communities "wins" on the other hand are. We win a battle in Congress on, say, the Arctic Refuge, and someone brings it up again the next month. We purchase a property or obtain an easement for conservation, and there's a risk that someday it too will be taken.

Any thoughts on this problem?
4.5.2006 10:31am
Marcus1 (mail) (www):
Funny, you probably thought it was strange that I brought up Adler earlier. I didn't realize you knew each other.

My two thoughts:

1. Is there really reason to think the Supreme Court would allow condemnation of private conservation land merely for economic development? I would guess that if this were attempted, we would get a much clearer rule from the Supreme Court about what kind of "economic development" qualifies and what doesn't. I'd guess it would be something like "'economic development' by itself doesn't satisfy the Constitutional standards, but for private transfers, there has to be some sort of compelling public need."

In Kelo, of course, it wasn't just about getting a few more tax dollars. It was because the city was in desperate need of revitalization, right? If that hadn't been the case, do we really think the Court would have gone along just for a little increase in tax revenue? I don't think the opinion says or implies that at all.

Maybe you're just trying to influence that future decision which sets the line, though, which I suppose makes sense to do.

2. Your discussion of whether prohibiting economic development takings would also prohibit environmentally-related condemnations seems a bit loose, at least on my brief reading. Rather than focusing on the actual Constitutional arguments, you seem to pretty much just focus on the lines taken by each of the justices. It makes sense in a way, but I think it glosses over some underlying problems.

The problem is that a prohibition on economic development takings would presumably be done via a narrow reading of "public use" (and the assumption that this is a specific requirement). Yet, if we say that this is a specific textual requirement, and we say that economic development is not "public use" enough, how really do we then say that taking property simply so that it won't be used still qualifies as a public use?

In fact, some of the Justices became very academic in Kelo in defining the word "use." They seem to think this was a word used with very specific intent by the framers, and that a public "purpose" specifically was not good enough. Again, to then say that environmental takings which involve no actual use still meet this test, seems to me to require some sleight of hand.

It's true, the conservative Justices in Kelo don't acknowledge this problem. They're more focused on who retains the property. The fact that they didn't acknowledge the implications of their textual test, though, doesn't mean that wouldn't become an issue down the road.

And again, I'd say this reveals an underlying problem with what I consider the faux-textualism used by the conservatives on the court. Turning "public use" into that kind of a strict requirement both stands at odds with the way the clause was written, and creates a very unnatural and unlikely test. I suppose that comment, though, is slightly out of the scope of your paper.
4.5.2006 11:13am
Cathy (mail) (www):
Thanks for the food for thought, because I've probably been more in the camp that Kelo could be good for environmental purposes.

But on that score, it seems to me there needs to be some differentiation in how "environmentalism" is best achieved. Certainly it's advanced through the existence of preserves, but it's also advanced by sensible urban development. The fact of the matter is that metropolitan areas have been built-up in very inefficient (and thus environmentally destructive) ways. It strikes me that Kelo could allow cities to sort of start over and redevelop into a more sustainable form. I am of course sensitive to the problems of kicking out current residents - I wouldn't therefore promote the wholesale bulldozing of neighborhoods. But when properly planned for and compensated, I wouldn't want a city NOT to be able to achieve this kind of end - an end that strikes me as ultimately better for the environment than the current status quo.
4.5.2006 1:32pm
Steve:
When you look at the history, as Professor Merrill lays it out, it's not just about Berman and Midkiff. It's also about a long line of cases, dating back a century or more, in which state and federal courts have permitted eminent domain for the benefit of agricultural and mining interests, or to develop a natural resource, even where there would be no literal "public use" of the property.

And the Court's point in Kelo was not that there will never, ever be a line that has to be drawn, but just that it would be positively revolutionary, overturning a century of jurisprudence, to suddenly adopt the bright-line rule urged by the petitioners in Kelo.

The conventional wisdom on Kelo has basically been defined by the parade of horribles in Justice O'Connor's dissent. The reaction among laymen is as if Justice Stevens had fashioned the concept of eminent domain out of whole cloth in Kelo, or at least greatly expanded it such that everyone's house is up for grabs now if it will get the government one more tax dollar. That's simply not the issue that was before the Court in Kelo, and all they did was basically reaffirm their prior precedent and hold that any setting of strict limits on the power will be left to the states. This is completely consistent with longstanding principles of federalism where land use is a fundamentally STATE and not federal issue.

I have no problem with anyone who opposes eminent domain, or wishes that the dissenters had prevailed in Kelo. But it troubles me to see educated law professors, most notably on this blog, perpetuating the myth that Kelo wreaked some earthshattering change in the law when it simply didn't. Even if it plays into the policy preferences of these professors to let the public continue believing that Kelo is the worst decision since Dred Scott, I feel like their duties as educators should lead them to be more intellectually honest about the issue. It's fine to admit that hey, Kelo wasn't that big a deal, but let's think of it as a wake-up call to get us to focus on abuses of eminent domain that should be curbed. One can take that substantive position without being dishonest about what Kelo said.
4.5.2006 2:05pm
Jonathan H. Adler (mail):
Steve --

Before hurling accusations, such as that Ilya and I are "dishonest," I think one should read the paper. It makes quite clear that Kelo did not make "earthshattering" changes to the Supreme Court's "public use" jurisprudence. (See, e.g., page 3.)

Our paper foucses on the environmental consequences of allowing takings for the purpose of economic development. This is the rule embodied by Kelo. We contend that this rule is less environmentally preferable to alternatives, such as the rule embodied by Hathcock. that would limit economic development. Among other things, we note that economic development takings may today be more threatening to environmental goals, such as the preservation of habitat and open space, than in prior decades. This is due to dramatic increase in the number of land trusts and conservation easements, combined with increasing development pressures on the urban-rural interface.

Several other readers have raised some good points to which one or both of us will respond. (Thanks!) At the moment, however, I have to prepare for a panel on another subject that begins shortly.
4.5.2006 2:38pm
Gordo:
Professor Somin, your co-authored argument exposes yet another policy argument against broad use of eminent domain by local governments. As an employee of such governments, I long ago came to the conclusion that the power of eminent domain in the hands of local government officials is a dangerous tool indeed. Your article adds to the parade of policy arguments against eminent domain presented in the Kelo amicus briefs from the likes of Jane Jacobs and the NAACP, along with the usual libertarian think tank suspects.

But bad policy is not unconstitutionality per se. Justice Stevens' opinion is quite persuasive on that subject, even though I ultimately disagree with it. I would have authored a narrow opinion overturning Kelo while leaving Berman and Midkiff in place (at least for now). The Kelo facts seem like a step too far in stretching the Takings Clause, but most of the battles to be won on this subject should be in the legislatures, not the Courts.
4.5.2006 2:47pm
DC Lawyer (mail):
Actually it was Justice Holmes who stretched the Takings Clause in Penn Central with his Lochner-like aphorism that when "regulation goes too far" it is a taking. The whole concept of "regulatory takings" is an anathema to the Clause.
4.5.2006 3:34pm
DC Lawyer (mail):
Oh bugger, I meant Penn Coal v. Mahon, not Penn Central. Sorry for writing too quickly.
4.5.2006 3:35pm
Gordo:
Complaining about Justice Holmes and Mahon is an example of Takings Clause absolutism, which I would put in the same category as Justice Black/First Amendment and the Gold Standard. Those days are gone, gone, gone.
4.5.2006 3:57pm
Gordo:
Justice Black/First Amendment isn't a very good example of the point I am trying to make, since 1st Amendment absolutism is pretty popular these days.

Perhaps the Boyd decision would be a better analogy.
4.5.2006 3:59pm
MMF:
It seems worth pointing out that local governments can also use the eminent domain power to acquire lands for the purpose of preservation or environmental protection.
4.5.2006 5:28pm
Ilya Somin:
Thanks for all the thoughtful comments. Let me briefly make a few points in response:

1. As we discuss in the paper and as I explain in even greater detail in my more general article on Kelo (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874865), it is highly unlikely that economic development takings actually benefit local economies more than they hurt them (by transferring land to less valuable uses). Thus, it is also unlikely that economic development takings can improve the environment by helping the local economy.

2. The Kelo decision does indeed permit condemnations for any kind of economic development, not just in cases where there is a great "need" for "revitalization." All you have to have is an "integrated development plan," but without any judicial evaluation of the plan's effectiveness or necessity (see pp. 2667-68 of the Kelo opinion). Indeed, the Court will defer to the city's judgement as to whether "revitalization" is needed or not. Pretty much any taking can satisfy this standard so long as the city is willing to put something that looks like a "plan" on paper.

3. The paper describes in detail why a ban on economic development takings would not lead to a ban on takings for environmental purposes. People are free to disagree with this argument, but I hope they will do so by answering the points made.
4.5.2006 5:59pm
Steve:
Let me be clear that I was not characterizing the paper, nor its authors, as "dishonest." Indeed, it was probably an overwrought word for me to use in any event. I was referring mainly to the propensity of certain VC posters, most notably Prof. Zywicki, to pretend that Kelo worked a major change in the law when it quite obviously did not. I see this behavior as a disingenuous stoking of the fires of the "anti-Kelo" movement, which I would have absolutely no problem with if it were simply an "anti-eminent domain" movement which targeted state legislatures instead of blaming it all on poor Justice Stevens.

I think this particular blog post was not quite so clear in disclaiming the layman view of Kelo as the paper itself is, but I think the update clearly resolves that issue. My goal was not to call anyone out as "dishonest," but to encourage more of the brilliant law professors in the blogosphere to use their powers for good, and to educate readers as to what Kelo really said. I wish, indeed, that Prof. Zywicki were more receptive to such entreaties, as I have been waging this solitary "tell the truth about Kelo" campaign for some time.
4.5.2006 7:43pm
Marcus1 (mail) (www):
Prof. Somin,

Thanks for your response.
2. The Kelo decision does indeed permit condemnations for any kind of economic development, not just in cases where there is a great "need" for "revitalization."
I'd disagree. From Kelo:
It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A's property to citizen B for the sole reason that citizen B will put the property to a more productive *2667 use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, [FN17] the hypothetical cases posited by petitioners can be confronted if and when they arise. [FN18] They do not warrant the crafting of an artificial restriction on the concept of public use. [FN19]
Thus, the Court suggests that in the context of economic development, an "integrated development plan" is necessary, as you note. It also suggests that the "sole reason that citizen B will put the property to a more productive use and thus pay more taxes" may not be good enough.

Your argument, though, is that private conservation land is going to be targeted. You state in your post: "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." But isn't the whole point of an "integrated development plan" that they can't do that? Maybe I'm missing something, but that doesn't sound like an "integrated development plan" to me. It sounds like the opposite -- targeting individual pieces of land. Thus, I'm inclined to say the Kelo Court generally wouldn't allow it.

Of course, under some circumstances they might, but I don't think it's a carte blanche as you seem to suggest, or that Kelo prevents the courts from dealing with it.
3. The paper describes in detail why a ban on economic development takings would not lead to a ban on takings for environmental purposes. People are free to disagree with this argument, but I hope they will do so by answering the points made.
Well, I tried. First you quote O'Connor, stating that the power to condemn in order to "trasnfer [it] to public ownership" is "relatively straightforward and uncontroversial." You then assert that this is the longstanding rule, that as long as there's "public ownership," anything goes. You then quote Thomas, with the "most restrictive view of public use" as acknowleding that even private-to-private is fine as long as "the public has a legal right to use the property." You then refer to what this reasoning would allow, and later go on to say that "Justice Thomas' solo dissent in Kelo is the only noteworthy modern judicial opinion that even comes close to advocating judicial invalidation of blight condemnation."

My criticism, thus, was that this is all fine and good, but is authority everything? What's the actual argument? How is "economic development" not a public use, but "environmental protection" is? I'm sure courts have said this is the case, but I haven't seen the argument, and it seems extremely counterintuitive. At least by my rhetoric, "environmental protection" is directly the opposite of public use, since it is all about preventing use of land by private or public hands. Put the other way around, if environmental protection in the abstract is a "public use," then it seems quite clear to me that "economic development" would be as well.
4.5.2006 10:37pm
Ilya Somin:
In brief response to Marcus:

1. "Integrated Development Plans"

The point here is that so long as the city has a "plan," they can do pretty much whatever they want. And since the Court explicitly states that they are not going to consider the quality of the plan, whether or not it will achieve its objectives, and so on, it is ridiculously easy for a city to come up with a plan to justify almost anything. All they have to do take conservation land is include the condemnation in a document called a "plan." The plan can justify "targeting" of a piece of land simply by claiming (even without any proof) that doing so is necessary to improve the city's overall economic development.

2. Environmental protection and public use.

THe paper does not argue that "Environmental protection" in the abstract is a public use. Rather, most condemnations intended to achieve that goal either 1) leave the property right in the hands of the government, which is clearly a public use and so recognized by 200 years of law, 2) eliminate a preexisting harm, which is permissible under Hathcock and the Kelo dissents, or 3) fall within one of Hathcock's other exceptions to the ban on private-to-private transfers. Frankly, 3) is probably unnecessary because virtually all environmental takings fall into 1) or 2).

Our paper does not attempt to justify why elimination of preexisting harms is a public use or government ownership is. Rather, our point is simply that a ban on economic development takings would not disturb either of these two longstanding rules, and therefore would not interfere with takings for environmental purposes.

Personally, I think that blanket permission for preexisting harm condemnations and government ownership condemnations may not be the best rule. But that is a subject for a different article.
4.5.2006 10:58pm
David M. Nieporent (www):


Marcus

1. Nothing in Kelo says that they need an "integrated development plan."
2. At most, Kelo says that the absence of an "integrated development plan" might be EVIDENCE that the taking is for an improper purpose. It certainly does not say that it actually _is_ improper to do a one-to-one transfer.
3. Indeed, nothing in the Court's logic could rationally limit a proper taking to a Taking as part of an "integrated development plan." If my city's economy is depressed, and Taking a single property from A and giving it to B will boost the economy, then it's a "public use" to do so. I don't need to also Take a bunch of other properties to make it a public use.
4. As the New London situation shows, an "integrated development plan" and $0.50 will get you tomorrow morning's newspaper. It doesn't mean anything. I can write an "integrated development plan" on the back of a napkin. (Or, more realistically, throw some bucks at a consulting firm to draw some pretty graphs and charts and bind it nicely.)
5. In particular, the court said that it was up to the political process, not the courts, to decide whether the plan was appropriate. So as long as you wave that document around, you can go ahead with that one-to-one transfer. The courts won't inquire further. It's a trivial procedural limitation, not a substantive one.
4.6.2006 1:40am
Steve:
Be that as it may, Kelo simply didn't involve a one-to-one transfer.

As the New London situation shows, an "integrated development plan" and $0.50 will get you tomorrow morning's newspaper.

I really don't understand how the New London situation "shows" this. The New London plan was quite broad and involved parks, shopping, housing, parking, a marina, and so forth. It looked, in short, like a typical development plan looks.

Can you argue that "integrated development plan" is hard to define? Sure. Can you argue that a plan could be shrunk and shrunk, one property at a time, until there is only one house left, and it would be tough to draw the line for when it ceases to be an "integrated development plan"? I guess.

But that's no different from any number of hypotheticals my law professors gave me when they thought they were trying to be cute. "What if I knock on your door to accept the offer and you shout through the door, 'I revoke'? Well, what if I'm coming up the sidewalk and you shout 'I revoke'? Well, what if I'm halfway up the block..."

The truth is, the "integrated development plan" concept has been around at least since Berman, and yet somehow, in the intervening 50 years no one has yet shrunk their plan one lot at a time until it turned into an A-to-B transfer. Indeed, the most we've had in those 50 years is Kelo, where the development plan looked... a lot like the traditional development plan featured in Berman!

The test has proved quite workable in practice, which leads me to conclude the test should be altered when an ACTUAL situation comes up where the test is abused, not merely based on hypothetical conjectures about how someone might abuse the test. This is just a slippery slope argument that doesn't work for me.
4.6.2006 10:55am
Marcus1 (mail) (www):
Prof. Somin and David Nieporent,

>Rather, our point is simply that a ban on economic development takings would not disturb either of these two longstanding rules, and therefore would not interfere with takings for environmental purposes.<

But I think it would, because it would rely on the idea that "public use" is a very specific requirement which excludes mere public purposes such as economic development, and yes, environmental protection. Indeed, this would overturn that very 200 years of precedent you are relying on to the effect that government ownership is itself a public use. If "use" is a strict substantive limitation on the circumstances in which government may take property (which it hasn't been at any time in our 200 year history), then all bets are off. You can't create an extremely strict requirement out of "public use" and then simply ignore it in contexts where it's not useful, even if O'Connor or Thomas say that's their intent. Basic logic and common sense says that if economic development is not a public use, then environmental protection is not either, whether or not the government retains the property, and whether or not the 200 years of precedent that just got thrown out the window says otherwise.

As to your first point, it seems your concern is that a government can pretend it has a public use when it really doesn't, and thus foil the courts. 1. I think that would actually be difficult, when you're talking about condemning conservation land. Maybe I'm unimaginative, but I'm having a hard time thinking of any plausible way in which this could happen. 2. I'm told that's the problem with democracy, that the government can often circumvent rules if it's feeling mischievous. Calling for intense judicial scrutiny on that basis strikes me as anti-conservative. Especially on an issue which would seem to have such strong inherent political checks.

Which raises the question again: How did conservatives decide so strongly that this issue should be co-opted by the judiciary? The more I read about this, the more it sounds like conservatives really wanted Kelo to be another Roe v. Wade, setting out every situation where a government taking is acceptable and where it wasn't.

(David, I think the last couple of paragraphs address your comments, to the effect that (1). it doesn't seem as easy to me as you think, and that (2). to the extent it is, that's the problem with Democracy, and about (3). what do you want, Roe v. Wade? True, they may not have laid out the limits of the government power, since they decided this case was within it. I think you're exaggerating the broadness of the opinion, though. I think the integrated plan concept does give courts room to invalidate takings which seem less about a city's real need and more about just targeting vulnerable property owners for tax dollars.)
4.6.2006 11:04am
DC Lawyer (mail):
I think some of you are misconstruing what an integrated development plan is and displaying something of a lack of knowledge of the rather arduous public process most development proposals go through in many jurisdictions.

I also think you're overlooking the concurrence in mthe case, which by my read, arguably places more constrainsts on economic development takings than existed before Kelo. It is very likely that future courts will look to the concurrence to set the outer limits of economic development takings.

As I understand it, and from my knowledge of planning, an integrated development plan would not be a back of a napkin proposal, but a plan that would go through a public process (planning commissions, city council, etc.) and would have to be consistent with the city's comprehensive plan, which is not so easy to amend.

You can fault the Court for believing this, but I think the Court is saying that where there exists a political process and comprehensive planning process, adequate safeguards exist against taking property from A and giving it to B. Surely the decision does prohibit such takings for graft or other reasons. It appears also, or at least strongly suggests, that such a taking would be prohibited for mere tax revenue.
4.6.2006 11:18am
Steve:
As I understand it, and from my knowledge of planning, an integrated development plan would not be a back of a napkin proposal, but a plan that would go through a public process (planning commissions, city council, etc.) and would have to be consistent with the city's comprehensive plan, which is not so easy to amend.

I agree with your understanding. But let's say, for the sake of argument, that a wholly corrupt municipality draws something on the back of a napkin, perhaps a plan to transfer your house to me, and they dress it up as a fancy "integrated development plan" with lots of charts and graphs and a clear plastic cover.

My point is simply that we should wait until the federal courts are actually presented with such a fact pattern, and wait and see what they do about it, as opposed to assuming that they will slavishly rubberstamp it because it has the magic label "integrated development plan." To my way of thinking, there is no basis for making such an assumption, and wailing about how terrible a decision Kelo was just because it doesn't include dicta which conclusively disprove that assumption is an overreaction.
4.6.2006 12:48pm
Marcus1 (mail) (www):
>It is very likely that future courts will look to the concurrence to set the outer limits of economic development takings.<

I agree with that.
4.6.2006 12:51pm
David M. Nieporent (www):
Can you argue that "integrated development plan" is hard to define? Sure.
I could argue that, but it isn't what I'm arguing. The line about napkins was hyperbole; the objection I am making is that this is a trivial procedural hurdle. All a "development plan" requires is that you throw a few bucks at a consultant to come up with a plan. Developers have these people on staff.

As to your first point, it seems your concern is that a government can pretend it has a public use when it really doesn't, and thus foil the courts.
That might be Prof. Somin's concern, but it isn't mine. Indeed, my concern is that the government, pursuant to Kelo, does not have to pretend. Virtually everything's a public use. (For it not to be a public use, the council would have to say, at the time it approved the condemnation, "The developer wants this property for his mistress, and we want to keep him happy because he pays for our trips to Bermuda.") Any developer who can't produce a consultant's report saying that the development he wants to engage in will produce economic benefits for the town isn't even trying.


I also think you're overlooking the concurrence in mthe case, which by my read, arguably places more constrainsts on economic development takings than existed before Kelo. It is very likely that future courts will look to the concurrence to set the outer limits of economic development takings.
I think you're overlooking that while Kennedy wrote a concurrence, he also joined the majority opinion. There's no basis for a future lower court to look to the language of his concurrence; the majority opinion is controlling.

You can fault the Court for believing this, but I think the Court is saying that where there exists a political process and comprehensive planning process, adequate safeguards exist against taking property from A and giving it to B.
Of course I fault the Court for saying that. The majority doesn't seem to grasp how local development works in the real world. The "procedural safeguards" are minimal.

Moreover, I fault the Court for establishing that standard. Can you identify any other provision of the Bill of Rights where the Court says, "Let's defer to the legislature; the political process provides adequate safeguards for (say) free speech."

However, I also fault your argument. Nowhere does the Court actually say that an "integrated development plan" is necessary, nor could it do so, constitutionally. The majority says that economic development is sufficient to satisfy the "public use" requirement of the Takings clause. Economic development might benefit from an "integrated development plan," but does not depend on one. If a city transfers property from A to B, and officially makes a finding when it does so that this transfer is for the purpose of promoting economic growth and increasing tax revenues, Kelo says that the constitution is satisfied. Period.
4.6.2006 1:40pm
David M. Nieporent (www):
To my way of thinking, there is no basis for making such an assumption, and wailing about how terrible a decision Kelo was just because it doesn't include dicta which conclusively disprove that assumption is an overreaction.
To my way of thinking, saying that a terrible decision might not be so terrible because lower courts will ignore what it actually says and circumvent the ruling by rewriting the law to create new procedural requirements is an underreaction.

Is it true that the existence of an "integrated development plan" would provide an adequate safeguard? I don't believe it would, for the reasons I've already stated. But assuming it would, so what? Kelo does not hold that such a plan is required, and the constitution certainly doesn't say that such a plan is. If economic redevelopment satisfies the public use requirements of the takings clause, then it does so with or without a "plan," and neither the constitution nor Kelo permits a lower court to find otherwise.

You seem to think the complaint is about about "corrupt" municipalities. But that's not the complaint at all. (As the old saying goes, the scandal isn't the illegal activity going on; the scandal is what's perfectly legal.) The criminal justice system can (we hope) take care of actual bribery. If a council decides that A owning property X is better than B owning property Y, then there's nothing "corrupt" required. It's perfectly legitimate (unfortunately) in American society to condemn property X to give it to a developer because the developer promises economic growth as a result. (Under Kelo, the courts won't even inquire as to whether that promise is reasonable or fanciful.)
4.6.2006 1:52pm
Steve:
If a city transfers property from A to B, and officially makes a finding when it does so that this transfer is for the purpose of promoting economic growth and increasing tax revenues, Kelo says that the constitution is satisfied. Period.

"Period"? I think you have to bolster this conclusion with a bit more citation to the text of Kelo than that.
4.6.2006 2:30pm
Marcus1 (mail) (www):
David,

You seem to be saying that, having foregone the hardline stance of turning the words "public use" into an extremely strict requirement, that there is no constitutional basis for imposing any limit on the government's power to condemn private property. I don't think that's how the court sees it, or that that is true. In Footnote 17, after referencing the "integrated development plan," the Court notes that takings absent such a plan "may also implicate other constitutional guarantees. See Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam)."

In my view, such takings would run afoul the due process clause, which incidentally was the original source of the "public use requirement" before the Court later apparently became confused and forgot that.

In any case, the court is unclear about what the limits would be and from where they would derive. Nevertheless, they certainly suggest that such limits exist. The idea that Kelo is a carte blanche for anything labeled economic development, I think, is unfounded.
4.6.2006 2:32pm
Ilya Somin:
I would have written an additional response, but most of the points I would have made were already made by David. I would only reiterate one thing:

J. Stevens' majority opinion does not impose ANY quality requirements on the "integrated development plan." The Court explicitly says that it will not judge the plan's efficacy, desirability, effectiveness, etc. Thus, virtually any plan will pass judicial scrutiny as laid out by the majority. Even the most blatant giveaway to an interest group will pass so long as the city has a plan that claims that it will promote "economic development."
4.6.2006 2:57pm
Steve:
I think saying you won't judge the plan's effectiveness is miles away from saying you won't even step in if it's a complete sham that results in an A-to-B transfer. The crazy hypothetical that lies at the bottom of the slippery slope simply hasn't happened in the 50 years since Berman, and yet people complain about Kelo as though it were the crazy hypothetical!

The real complaint is nothing more than that Kelo leaves the door open for a crazy hypothetical. And I'm sorry, but the Court leaves doors open all the time, and it doesn't make a decision the worst thing since Dred Scott. Call me when the mythical A-to-B transfer actually materializes.
4.6.2006 6:42pm
Marcus1 (mail) (www):
Prof. Somin


Even the most blatant giveaway to an interest group will pass so long as the city has a plan that claims that it will promote "economic development."


Not a chance, I say. As I quoted Kelo above, "Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot, [FN17] the hypothetical cases posited by petitioners can be confronted if and when they arise. [FN18]"

What you're describing is a private purpose. A "blatant" one, by your own language. With respect, I think this is a common characteristic of much of the scare-mongering about Kelo, suggesting that the Court will allow private purposes. The Court did not say it would not look into that. The above quote clearly suggests it would. In the absence of an alleged private purpose, though, they're simply not going to micromanage desirability and efficacy. And really, would we want them too? Desirability and efficacy don't strike me as legitimate constitutional tests for what is a public use, even if that's the test we're going to use.

Thus, if you have a shoddy development plan, they're not going to overrule it just because it's shoddy. They will look to see, though, if it is evidence of a private or a missing public purpose. Moreover, they suggest that if a lot of these "unusual" situations start to arise, they'll adress them then. In most contexts, this is referred to as judicial restraint.

I'll concede that the conversation is a little silly though. Obviously we have no idea what the court will do, which isn't even the same people any more. So maybe your fear is founded after all. I'm quite sure, though, that Stevens' would disagree with you that the opinion is as much of a carte blanche as you claim.
4.6.2006 6:52pm
Ilya Somin:
This debate has probably reached the point of diminishing returns. So I will not end with this quote from Stevens' opinion: "[W]e decline to second-guess the City's considered judgments about the efficacy of its development plan, [and] we also decline to second-guess the City's determinations as to what lands it needs to acquire in order to effectuate the project." Kelo, 125 S.Ct. at 2668.

Thus, under the opinion's logic (and this is part of the holding, not dicta), courts cannot consider 1) whether the plan will actually achieve any "development" or 2) whether the land targeted for condemnation is even needed to implement the plan. Under this approach, virtually anything that looks like a plan can pass muster.
4.6.2006 7:57pm
Steve:
Yes, but Justice Stevens made that statement AFTER concluding that Kelo presented an example of a garden-variety redevelopment plan. That hardly forecloses a court from conducting a more searching inquiry if presented with an atypical sort of plan.

There is nothing insidious, or even new, about the Court's refusal to go lot by lot to determine if each parcel of property "is even needed to implement the plan." That's no different from the holding of Berman, 50 years ago.

The error lies in refusing to acknowledge that Kelo involved a vanilla set of facts, and attempting to extrapolate its holding to apply to any number of bizarre hypotheticals. Courts do far better when they simply address the facts before them, rather than attempting to anticipate every outrage that might occur, but has yet to occur in a century of eminent domain jurisprudence.
4.6.2006 10:00pm
David M. Nieporent (www):
I agree with Prof. Somin that we no longer appear to be making progress, but one last time, I want to try to explain the point:
I think saying you won't judge the plan's effectiveness is miles away from saying you won't even step in if it's a complete sham that results in an A-to-B transfer.
You're still arguing about a "sham." But

1) I don't know what a "sham" transaction is; the fact that it's an "A-B transfer" in no way makes it a "sham." (Nor does Kelo hold that it is.)

2) Even if an "A-B transfer" outside a "plan" would be deemed a "sham," this is ultimately an insigificant procedural safeguard, because it's about as hard for a town to come up with a "plan" as it is for the town to schedule a Fourth of July parade.

3) What those of us who have criticized Kelo are upset about is not "sham" transactions, but perfectly "legitimate" transactions just like the one at issue in Kelo. "Garden variety redevelopment plans," to use your language.
4.7.2006 1:14am
Marcus1 (mail) (www):
>What those of us who have criticized Kelo are upset about is not "sham" transactions, but perfectly "legitimate" transactions just like the one at issue in Kelo. "Garden variety redevelopment plans," to use your language<

Then I think y'all should be more straight-forward about it and stop invoking the "sham" just to freak the poor public out.
4.7.2006 2:57pm
David M. Nieporent (www):
Then I think y'all should be more straight-forward about it and stop invoking the "sham" just to freak the poor public out.
Marcus, we are. You guys are the ones coming up with the "sham" line.
4.7.2006 7:44pm