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Can regulatory takings litigation cause a chilling effect? A study of law and federal environmental regulation
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Can regulatory takings litigation cause a chilling effect? A study of law and federal environmental regulation
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Study of law and federal environmental regulation
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Botello-Samson
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Darren
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Darren Botello-Samson
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author
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Lawrence
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Susan
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Advisory Committee
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Susan Lawrence
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chair
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Heumann
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Milton
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Advisory Committee
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Milton Heumann
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internal member
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Miller
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Lisa
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Advisory Committee
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Lisa Miller
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internal member
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McCay
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Bonnie
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Advisory Committee
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Bonnie McCay
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outside member
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Rutgers University
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Graduate School - New Brunswick
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theses
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2008
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2008-05
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English
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electronic
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viii, 249 pages
Abstract
The classical story of regulatory takings litigation, which demands compensation under the Fifth Amendment from regulatory agencies which restrict property use and/or development, predicts that such litigation can cause a chilling effect, or a reduction in an agency's regulatory output, to offset and/or avoid such compensatory demands. Such predictions are based on assumptions rooted in economic analyses of law and regulatory behavior. Quantitative, qualitative, theoretical, and legal analyses were conducted on takings litigation involving two federal environmental programs, the Endangered Species Act and the Surface Mining Control and Reclamation Act, to test the acceptability of such assumptions. By interpreting such litigation through the lens of legal pluralism, an anthropological approach to the study of law when multiple legal traditions exist in the same space and time, the nature of takings litigation as a dialectic and hermeneutic evolution between the constitutional codification of property rights and the common law traditions of nuisance and public welfare is revealed. Regulatory takings law is, therefore, not an economic equation determining some restrictions compensable and others not; it is a fluid body of law, heavily determined by contexts of meaning which, themselves, change over time and place. From this perspective, the perceptions of regulatory agents become central, as the likelihood of a chilling effect is dependent upon their perceptions of their own powers and responsibilities under takings jurisprudence and their enabling statutes. Interviews with such personnel revealed that any chilling effect caused by takings litigation must overcome institutional constraints which shape those agents' perceptions and awareness of takings and environmental legal rights and responsibilities. These institutions include the external and internal fragmentation of regulatory decision-making, the presence of an agency culture of enforcement, the particulars of the relationship between the regulators and the regulated, and the effect of a maintained regulatory presence of the program, shaping the perceived acceptability of property restraints necessary for successful implementation.
Note
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Ph.D.
Note
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Includes bibliographical references (p. 238-245).
Subject
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Topic
Political Science
Subject
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Environmental law
Subject
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Topic
Land use--Law and legislation
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Graduate School - New Brunswick Electronic Theses and Dissertations
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rucore19991600001
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http://hdl.rutgers.edu/1782.2/rucore10001600001.ETD.17276
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ETD_807
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doi:10.7282/T3DR2VVQ
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ETD doctoral
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Darren Botello-Samson
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Rutgers University. Graduate School - New Brunswick
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Author Agreement License
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I hereby grant to the Rutgers University Libraries and to my school the non-exclusive right to archive, reproduce and distribute my thesis or dissertation, in whole or in part, and/or my abstract, in whole or in part, in and from an electronic format, subject to the release date subsequently stipulated in this submittal form and approved by my school. I represent and stipulate that the thesis or dissertation and its abstract are my original work, that they do not infringe or violate any rights of others, and that I make these grants as the sole owner of the rights to my thesis or dissertation and its abstract. I represent that I have obtained written permissions, when necessary, from the owner(s) of each third party copyrighted matter to be included in my thesis or dissertation and will supply copies of such upon request by my school. I acknowledge that RU ETD and my school will not distribute my thesis or dissertation or its abstract if, in their reasonable judgment, they believe all such rights have not been secured. I acknowledge that I retain ownership rights to the copyright of my work. I also retain the right to use all or part of this thesis or dissertation in future works, such as articles or books.
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