Climate change is the culprit of unprecedented levels of powerful natural disasters. Each year, we hit a record high global temperature. To combat this, state governments have slowly introduced regulations to mitigate anthropogenic causes (e.g., Michigan S.B. 271). However, their actions must not conflict with our fundamental values of freedom and liberty. That is, in exercising their power, they must not infringe upon the citizens’ constitutional rights.
A contentious subject within climate change legislation is the right to property. The Fifth Amendment, applied to the states through the Fourteenth Amendment’s Due Process Clause of the U.S. Constitution, allows state governments to seize properties but must recompense the loss. Within the context of climate change, any legislation devaluing or damaging the property itself is unconstitutional unless compensated fairly by the government.
In 1975, David H. Lucas bought two beachfront properties in Isle of Palms, South Carolina. The state passed the Coastal Zone Management Act two years after, requiring coastal land owners to obtain a permit from the Coastal Council before committing the land to new uses. The idea was to prevent developments around the region that would be harmful to the environment. Had Lucas purchased his land two years late, he would have been barred from building homes on the properties due to the effects it would have on the environment.
In Lucas v. South Carolina Coastal Council, the Supreme Court held that the council’s action constituted a regulatory taking. They reasoned that because the regulation deprived Lucas of any economical benefits he would have otherwise reaped, the council (and thus, the state of South Carolina) effectively took away his properties—even if not physically. What use did he have of the property if he was regulated out of using it? The dissent argued that he did have other uses of his land. They argued that he could still restrict others from entering or set up temporary sites, like a private picnic. The dissent’s remaining argument cited that the Court had typically refused to rule against the government in the takings cases if the land was undeveloped.
Whereas the current Supreme Court decisions lean overly pro-business, this decision struck a perfect balance between being pro-business and pro-regulation. The Court did not bar the state from regulating environments. In fact, regulations can bar developments entirely. Nevertheless, the developers must be compensated for their profit loss by the government. After all, they owned the land to begin with.
In practice, there are two types of regulatory takings: total and partial. Total is when a regulation or legislation deprives the property owner of all economic benefits. Partial is when the economic value of the property is severely lost. Cases arguing compensation for both total and partial regulatory takings have been hard to win. Consider K&K Construction v. Dept of Natural Resources (1998), where a construction firm argued that, because it was not allowed to fill in and develop wetlands due to environmental regulations, it fell victim to a total regulatory taking. The Michigan Supreme Court disagreed, stating that there were numerous other parcels in which development could have been carried out—the regulation did not deprive the property owner of the land’s economic benefits. Or consider Chelsea Investment Group, LLC v. City of Chelsea (2005), a partial takings case in which the Appeals Court of Michigan ruled that, because the properties owned by the CIG still retained their value (even if the potential economic benefit was lost), the city’s ordinance that halted the development did not constitute a taking.
Michigan courts should continue to develop takings jurisprudence such that it is not too burdensome for property owners to prove that a taking has happened. There was a glimmer of hope with the 2006 Michigan constitutional amendment to Article IV, which further limits the state’s eminent domain and what constitutes “public use.” This was a response to the 2005 U.S. Supreme Court decision, Kelo v. New London, in which the court held that government organizations transferring seized private property to private developers qualifies as public use and thus constitutional. The assertion held that selling seized properties to private developers would bring economic prosperity, which would benefit the public. As a response, the 2006 Michigan amendment shifted the burden of proof—whether or not the taking is for public use—onto the state and off of the property owner. Michigan responded correctly. If the state had an interest in seizing land to turn it into a park or to preserve its environment, the owners first had to be paid fairly, even if the taking was partial or temporary. No matter how valid the state’s interest is in trying to combat climate change, it must always carefully balance its policy goals with the rights of its citizens.
