Friday, February 3, 2017

#PropertySchmooze Panel 1: Takings Revisited

Greetings from the Property Schmooze at Texas A&M!  The first panel is on takings law.  We're about to start, so time to start blogging!  

The first paper is by Tim Mulvaney (Texas A&M), who presented his work, Non-Enforcement Takings.  Tim raises the question of whether the lack of enforcing a propety law could serve as the basis of a taking.  For example, assume there are two land owners, A and B.  The state decides not to enforce a property law against A.  Query:  can B sue for a takings for the non-enforcement of the law against A?  To highlight his example, Tim discussed the recent case, Harris County v. Kerr.  In Kerr, there were two sets of land owners--upstream land owners and downstream land owners.  In the 1980s Harris County made a flood plan which said the county would not allow the upstream owners to develop their property in such a manner as to injure the downstream owners.  Since the paper is about non-enforcement, you can all guess what happened next.  The upstream owners were allowed to develop their property and that development caused problems for the downstream owners.  The downstream owners brought a takings claim againt the county and the Texas Supreme Court easily dismissed their claims.  Tim's paper asks whether that was the right answer and whether there is a broader category of non-enforcement takings.

Next up is Chris Serkin (Vanderbilt) who presented his work, Prospective Grandfathering, which is co-authored with Michael Vandenbergh (Vanderbilt).  Chris' talk commences with the story of natural gas. As he said, we need to move from coal to natural gas soon, but we can't stop at natural gas; in 30 years we need to have developed technology so as to no longer be required to use natural gas.  Chris' story creates a taking in the future--we know today that we need natural gas companies to build up, but only build up for 30 years, and then Congress needs to regulate the natural gas market in such a way as to eliminate natural gas.  Chris' point is that we know a takings case will happen in the future, so can we do anythig about it?  He answers the questionin the affrmative with the idea of prospectively grandfathering in (and thus eliminating) future takings litigation.  His plan is to require regulators to announce but delay the adoption of new regulations, as well as accelerate cost recovery for individuals like natural gas utilities, and in doing so, the future government would be immunized from the takings claim.  In other words, Chris advocates having natural gas companies charge more today to preemptively make up for predicted future industy downturns, thereby removing the future takings claim.     

The last paper for the Takings panel is from Greg Stein (University of Tennessee).  Greg presented his paper, Reverse Exactions.  Greg's work looks at exactions and asserts that current exaction law tips the scale too favorably towards the applicant because the state is too concerned about takings liability and thus allows too many applicants to get their permits or applicants to pay too little money to offset the externalities caused by their permit.  To combat this, Greg's paper argues that we should have a reverse exactions claim whereby members of the community could bring a claim asserting that the state did not acquire enough of an offset from any negative consequences from issuing the permit and demand that more offset must be extracted.  

Panel two on fair housing is up next!

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