HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, December 19, 2008

Takings and Public Health

Marcia Coyle writing at reports on takings and public health - a potential expense that most have not considered when thinking about public health measures.  She writes,

Eggs2_2 Behold the table egg. A popular staple of breakfast and baking, eggs are at the center of a major and lengthy property rights battle in a federal appellate court that could affect all types of federal regulation on behalf of public health and safety.

The U.S. Court of Appeals for the Federal Circuit, an important forum for Fifth Amendment "takings" litigation between the federal government and business and private parties, recently heard the government's appeal of a lower court ruling that the government must pay nearly $9 million for a "takings" in connection with its effort to stop the spread of salmonella outbreaks almost two decades ago. Rose Acre Farms v. U.S., No. 2007-5169.

The takings decision by the U.S. Court of Federal Claims "raises a disturbing possibility" that government officials, when considering how best to protect public health and safety, will have to take into account a possible takings claim every time they regulate to take unsafe products off the market, said Elizabeth Wydra, chief counsel to the Constitutional Accountability Center, which filed an amicus brief in the Federal Circuit on behalf of eight consumer, public health, safety and science organizations.

"There could arguably be an extrapolation from this case that anytime government regulates to respond to a national disaster or terrorist attack that causes loss to businesses, that could be a takings that taxpayers would have to pay for," she said, adding, "We are very interested in making sure public health and safety gets predominate weight in balancing business interests and protecting the public." . . . .

At the end of the Federal Circuit argument in the case, Chief Judge Paul Michel, a member of the three-judge panel, said, "This is a very interesting and very troublesome case. Guidance from above has not always been crystal clear in the Fifth Amendment takings area, as lawyers have observed before me." . . . .

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