Monday, February 15, 2016

More on Scalia's Land Use Legacy

Yesterday our fearless leader, Stephen R. Miller, blogged about Justice Scalia's three most important land-use-related decisions.  I agree with his assessment that Nollan and Lucas are two of the most influential takings cases ever decided, and certainly Rapanos' change in wetlands regulation are had a dramatic effect on the development industry and control of water quality (although arguably Justice Kennedy's concurrence with its "significant nexus" test is more relied upon by regulators).

Inspired by Stephen, I perused the list of Scalia-authored opinions and found a couple more of interest.  In the vein of my previous post about how Scalia's passing will likely result in the survival of President Obama's Clean Power Plan, I also think Scalia's decision in Michigan v. EPA was highly influential. It held that the EPA must consider cost when deciding whether regulations under the Clean Air Act is "appropriate and necessary." (Bob Sussman wrote about the impact of Michigan v. EPA for the Brookings last summer.)

Also, a somewhat lesser known but important Scalia-authored case was City of Columbia v. Omni Outdoor Advertising (1991), in which the court upheld anti-trust immunity for local governments enacting zoning restrictions - in this case, those that regulated signs. (Linda Greenhouse covered the case for The New York Times.) Although this case lacks the colorful language of some of Scalia's more recent opinions (primarily dissents), it is interesting reading for those of us who care about the limits of local government police power.

Jamie Baker Roskie

Caselaw, Constitutional Law, Environmental Law, Federal Government, History, Judicial Review, Local Government, Supreme Court | Permalink


I would argue that the Scalia opinion that has had the greatest impact on land use law, albeit indirectly, was Employment Div. v. Smith. Scalia's revision of free exercise substantial burden analysis was the impetus for RFRA and, in the wake of Boerne, RLUIPA.

Posted by: Alan Weinstein | Feb 16, 2016 8:33:23 AM

Oh, yes, Alan - excellent point!

Posted by: Jamie Baker Roskie | Feb 16, 2016 9:03:34 AM

Here's Greenwire's take on this question:

Posted by: Jamie Baker Roskie | Feb 16, 2016 3:00:12 PM