Friday, August 18, 2006
I vaguely remember a controversy back in the '90s about the reporting of the famous Lucas decision, which set forth a limited ground for property owners to recover from the government for a regulatory taking. Today there's another problem with the reporting of a complex land use decision. Perhaps the biggest victory for landowners against government regulation since Lucas is Rapanos v. United States, decided by the Supreme Court in June. What did Rapanos "hold"? For anyone who has read the case, the answer is clear: There was no majority opinion in Rapanos; Justice Scalia's four-justice plurality opinion was not the opinion of the court. But according to Westlaw (accessed this morning), "Justice Scalia ... announced the judgment of the court, holding that: (1) term 'navigable waters,' under CWA, includes only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water, and (2) only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right are adjacent to such waters and covered by the CWA." But Justice Kennedy, who concurred only in the judgment remanding the case, disagreed with this reasoning of the plurality. Isn't this reporting as to the "holding" incorrect?
This blog is an Amazon affiliate. Help support Land Use Prof Blog by making purchases through Amazon links on this site at no cost to you.
- Katherine Dentzman on A Coordinated Approach to Food Safety and Land Use Law at the Urban Fringe
- Jesse Richardson on Local Regulation of Hydraulic Fracturing
- Jamie Baker Roskie on Local Regulation of Hydraulic Fracturing
- Samuel on Schleicher and Rauch on local regulation of the sharing economy
- Timothy Wayne George on Is Reed v. Town of Gilbert an important sign case?
- Water Down Under: A Report from Australia by Barb Cosens: Post 2: Comparative Water Law: Australia and the western United States or Conversations with Claire
- APA Planning & Law Division's Smith-Babcock-Williams Student Writing Competition now accepting entries
- Jan 30 - Boston U Law - The Iron Triangle of Food Policy - AJLM Symposium
- "Basic Human Right" to Farm Your Lawn?
- CFP: Fordham Law: Sharing Economy, Sharing City: Urban Law and the New Economy