The Effect of the Federal Takings Executive Order

Abstract

On March 15, 1988, prompted by the Supreme Court's landmark takings decisions in Nollan v. California Coastal Commission, 107 S.Ct. 3141 (1987), 39 ZD 226, and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 107 S.Ct. 2378 (1987), 39 ZD 206, President Reagan signed Executive Order 12,630 on regulatory takings. 53 Fed. Reg. 8859. The order, designed to restore constitutional sensitivity toward property owners, ensures that Nollan and First English are followed in their letter and spirit at the federal level. As a fiscal responsibility and good management tool, it requires federal decision makers to assess the likelihood that proposed federal actions may result in a taking of private property for which compensation may be due under the Fifth Amendment. It also obligates federal agencies to tailor their actions carefully to the problems they are designed to address in a manner that will minimize their impact on the rights of private property owners. The order and its implementing guidelines, issued by the Attorney General on June 30, 1988, provide the greatest protection against arbitrary or unnecessarily broad regulations for private property owners ever afforded by the federal government and provide a model for state and local governments. (The Attorney General's Guidelines have been published in the Environmental Law Reporter Administrative Materials at 35172 [1988].) State, regional, and local governments, even more than the federal government, whose forays into land use regulation are still small by comparison, may be faced with a substantially increased risk of having to pay for poorly designed regulations.