The Total Takings Myth

For almost thirty-five years, the U.S. Supreme Court has attempted to carve out a total takings doctrine within its regulatory takings jurisprudence. Most regulatory takings claims are evaluated under the “ad hoc” threefactor test first articulated in Penn Central Transportation Co. v. City of New York. Exceedingly few of these claims are successful. But the Court has identified certain categories of government actions that are compensable takings per se, otherwise known as total takings. This began in 1982 with Loretto v. Teleprompter Manhattan CATV Corp., where the Court held that a land use ordinance requiring a landowner to endure a permanent physical occupation of a portion of her property is always a compensable taking. Ten years later, in Lucas v. South Carolina Coastal Council, the Court held that a land use restriction depriving an owner of all economically viable use of her property is also compensable per se. Finally, in 2015, in Horne v. Department of Agriculture, the Court extended its total takings jurisprudence to personal property, announcing that the government appropriation of personal property is a per se compensable taking. Although the Court has had more than three decades to articulate theoretical justifications for its total takings jurisprudence and to provide guidance for lower courts in determining when a regulation constitutes a total taking, it has failed to do so. This failure reflects the underlying reality that the total takings doctrine is a myth. More particularly, the categories that the Court has identified as constituting total takings are analytically incoherent, and the terms the Court has used to demarcate total takings from regulations that are not per se compensable cannot be applied in the real world. As a result, lower courts struggle to apply the total takings doctrine and the case law remains in utter disarray. In fact, lower courts have resorted to creating “shadow” total takings doctrines that rely on obvious distortions of the plain meaning of outcome-determinative terms and deflect attention from the fundamental question of whether compensation is warranted. This Article argues that the Court’s attempt to create a total takings doctrine has failed, and that the Court should repudiate it. It demonstrates that the Court’s initial total takings opinions were conceptually incoherent and woefully undertheorized. And it shows that attempts by lower courts to rehabilitate the doctrine by crystallizing the bright-line rules through careful and consistent application were doomed to, and did, fail. This Article also explains why the entire enterprise was misguided from the start. Although bright-line rules have their place, it is not in the heart of regulatory takings doctrine, which is premised on concerns for fairness and justice in distributing the burdens of land use regulation. Last term, the Court had a perfect opportunity to begin the process of repudiating the total takings myth. Murr v. Wisconsin was a run-of-the-mill regulatory takings case masquerading as a Lucas-type total takings claim, and it presented the Court with a vehicle to either remedy the central doctrinal incoherence of Lucas’s bright-line rule or to overrule Lucas and turn its attention to the much needed task of clarifying and refining the Penn Central test. Instead, by offering a new multifactored test in a sort of regulatory takings “step zero,” the Court in Murr merely exacerbated the core flaws of the Lucas bright-line rule. Now, more than ever, it is imperative that the Court recognize and begin to dismantle the total takings myth

A theoretical/experimental program to develop active optical pollution sensors

Light detection and ranging (LIDAR) technology was applied to the assessment of air quality, and its usefulness was evaluated by actual field tests. Necessary hardware was successfully constructed and operated in the field. Measurements of necessary physical parameters, such as SO2 absorption coefficients were successfully completed and theoretical predictions of differential absorption performance were reported. Plume modeling improvements were proposed. A full scale field test of equipment, data analysis and auxiliary data support was conducted in Maryland during September 1976

Use of LARS system for the quantitative determination of smoke plume lateral diffusion coefficients from ERTS images of Virginia

A technique for measuring smoke plume of large industrial sources observed by satellite using LARSYS is proposed. A Gaussian plume model is described, integrated in the vertical, and inverted to yield a form for the lateral diffusion coefficient, Ky. Given u, wind speed; y sub l, the horizontal distance of a line of constant brightness from the plume symmetry axis a distance x sub l, downstream from reference point at x=x sub 2, y=0, then K sub y = u ((y sub 1) to the 2nd power)/2 x sub 1 1n (x sub 2/x sub 1). The technique is applied to a plume from a power plant at Chester, Virginia, imaged August 31, 1973 by LANDSAT I. The plume bends slightly to the left 4.3 km from the source and estimates yield Ky of 28 sq m/sec near the source, and 19 sq m/sec beyond the bend. Maximum ground concentrations are estimated between 32 and 64 ug/cu m. Existing meteorological data would not explain such concentrations

Interdisciplinary study of atmospheric processes and constituents of the mid-Atlantic coastal region.

Past research projects for the year 1974-1975 are listed along with future research programs in the area of air pollution control, remote sensor analysis of smoke plumes, the biosphere component, and field experiments. A detailed budget analysis is presented. Attachments are included on the following topics: mapping forest vegetation with ERTS-1 MSS data and automatic data processing techniques, and use of LARS system for the quantitative determination of smoke plume lateral diffusion coefficients from ERTS images of Virginia

Remote detection of aerosol pollution by ERTS

Photogrammetric and densitometric examination of ERTS-1 MSS imagery of Eastern Virginia coupled with extensive ground truth air quality and meteorological data has shown that the identification and surveying of fixed particulate emitters (smoke plumes) is feasible. A description of the ground truth network is included. The quantitative monitoring of smoke stacks from orbital altitudes over state size regions appears possible when tied to realistic plume models and minimal ground truth. Contrast reductions over urban areas can possibly be utilized to produce isopleths of particulates when supplemented by local measurements