4. The effort to exalt ruisance into an all-embracing and exclusive defense to compensation. 21 Compensation bills contain narrow exemptions which would avoid a duty to compensate if the regulated use constitutes a nuisance.2 However, the Court has expressly rejected a takings standard that required a determination of whether regulated activity was "a nuisance according to the common law."22 Further, because so much conduct falls outside the scope of the nuisance doctrine, the Court has routinely allowed regulation for conduct that was not a nuisance--such as destruction of diseased trees,23 liquor prohibition.24 and conventional urban zoning." Neither common law nuisance, nor the novel formulations in the House-passed bill provide the public with adequate protection. 29 27 26 30 25 Many environmentally harmful activities, now regulated by Federal law, are not nuisances in at least some states, among them the following: flooding caused by filling of adjacent property," hazardous waste contamination of property, 28 groundwater contamination,2 asbestos removal, and contamination of a creek by a leaking landfill.31 State nuisance law was never intended, and has never served, as complete protection from all human health risks and other threats to public welfare. Indeed, the reason federal environmental laws were enacted in the first place was to address 21 The House-passed bill (H.R. 925) contains some additional exemptions, as for actions whose primary purpose is to prevent "identifiable" damages to "specific" properties, or an "identifiable hazard to public health or safety, the scope of which is uncertain and undefined. 22 23 Ibid. 24 25 Miller v. Schoene, 276 U.S. 272, 280 (1928). Mugler v Kansas, supra. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 26 Attached to this statement is a memorandum prepared in the Department of the Interior that discusses the scope of the nuisance exceptions in H.R. 925 and S. 605. 27 Johnson v. Whitten, 384 A.2d 698, 700-01 (Me. 1978). 28 American Glue and Resin, Inc. v. Air Products & Chemicals, Inc., 835 F.Supp. 36, 48-49 (D. Mass. 1993). 29 30 31 Cereghino v. Boeing Co., 826 F.Supp. 1243, 1247 (D. Or. 1993). City of Manchester v. National Gypsum Co., 637 F.Supp. 646, 656 (D.R.I. 1986). O'Leary v. Moyer's Landfill, Inc., 523 F.Supp. 642, 657-58 (E.D. Penn. 1981). problems that were not being adequately addressed under state nuisance law 32 There are several reasons why nuisance law has proven inadequate to control matters such as widespread pollution that have subsequently been subject to regulatory legislation. It is often difficult to prove a causal link between the harm at issue and the conduct of a particular defendant. It may be equally difficult to establish that any defendant is causing a nuisance where serious cumulative harm is caused by several sources, none of which, by itself, would cause significant damage. Moreover, a nuisance defendant's conduct often must be substantial and continuing in order to constitute a nuisance, which renders nuisance law ill-equipped to prevent single or intermittent discharges of toxic pollutants. Further, a nuisance exception would not extend to many protections designed to address long-term health and safety risks. Nuisance law is also inadequate to protect those who might be particularly sensitive to the harmful health effects of pollution, including children and senior citizens. Finally, nuisance law is uncertain and complex, and it may be difficult to determine how, if at all, a state's nuisance law applies to a particular activity. As Dean Prosser put it, "there is perhaps no more impenetrable jungle in the entire law than...nuisance." 33 Furthermore, some critical public safety activities are governed solely by federal law, and thus would not qualify for a state law nuisance exemption. Such an exemption also would not extend to uniquely Federal functions such as regulation of interstate pollution, the conduct of foreign relations, and providing for the national defense. Had S. 605 been in effect during the Iran hostage crisis, federal seizure or freezing of Iranian assets could have given rise to numerous statutory compensation claims. A nuisance exemption also fails to recognize that there are many important public interests that do not in any sense come within the scope of nuisance law and are also not fully addressed by state law. Thus S. 605 would likely require compensation for prohibitions on the sale of dangerous medical devices, explosives, or dangerous weapons, on suspension of an unsafe air carrier's operations, for orders directing motor carriers to stop using unsafe vehicles, and for worker safety rules. Similarly, since the nuisance laws of few, if any states would provide that failing to provide access to disabled persons constitutes a nuisance, the costs of implementing the Americans with Disabilities Act would trigger compensation claims. Indeed, S. 605 may threaten many forms of civil rights protections. In the 1960s, segregationists argued that our landmark civil rights laws unreasonably restricted their property use, and that they should be compensated because they were required to integrate. That view has been rejected. A much different result could occur with respect to new civil rights protections if rigid compensation legislation were to replace the flexible Constitutional standards. 5. The effort to articulate a bright-line, one-size-fits-all test. Even Justice Scalia, perhaps the member of the present Supreme Court most attracted to categorical solutions, sees categorical standards as limited to two very restricted types of cases, permanent physical invasion and regulation resulting in loss of economic viability. The Court, over the decades, has concluded that, in most other circumstances, the only way to determine fairness is through fact-specific, case-specific analysis. As the Court has said repeatedly, the key to determining compensation is "ad-hoc factual inquiry into the circumstances of each particular case." 32 See S. Doc. No. 63, 91st Cong., 2d Sess. 1679 (1970). 134 33 W. Page Keeton et al., Prosser and Keeton on the Law of Torts, sec. 86 at 616 (5th ed. 1984). 34 Concrete Pipe, supra, 113 S.Ct. at 2290. Moreover, the purported clarity of a bright-line formula to settle compensation questions is largely illusory. S. 605, if enacted, will require the creation of large and costly bureaucracies in Federal agencies and departments in order to process and evaluate compensation requests. It seems likely to foster the emergence of a massive claims industry, providing much work for lawyers and appraisers 37 ... Complicated and novel factual and legal questions will have to be resolved: What is an "affected portion of property"?35 When has a law been administered "in a manner that has the least impact on private property owners' other legal rights"?36 What is a "right to use or the right to receive water,' as compared to a "water right" as understood in ordinary water law parlance? Agencies and courts will have to grapple with such novel interpretive for years, perhaps decades, under what has been put forward as a bright-line standard. The consistent judgment of the Supreme Court spanning nearly the whole of the nation's history should sound a warning note against efforts to legislate a onedimensional, one-size-fits-all, purported bright-line standard. The Court has shown that any such effort is destined to prove illusory. What is more, it would prove intensely mischievous, generating burgeoning litigation for years, if not decades, heavy costs to taxpayers, unwanted consequences, mountainous administrative burdens, and unintended windfall gains. We believe that targeted reform of specific programs, responsive to real and documented problems, is the right way to assure fairness to property owners, and most particularly to small owners. We believe the reforms we have put into effect, and those we have identified as worthy of legislative consideration, illustrate a more positive and fruitful approach. I am providing here for your information a brief description of those reforms, and of their present status. 35 S. 605, sec. 204(a)(2)(D). 36 S. 605, sec. 503(a)(2). 37 S. 605, sec. 502(5)(C). STATUS OF DEPARTMENT OF INTERIOR'S REFORM OF THE ESA The Department of the Interior has in the past year and a half instituted a number of reforms to the Endangered Species Act, in addition to making a number of legislative recommendations to further improve the Act and its implementation. Many of these policies were announced in July 1994 and others were included in the Department's Statement of Principles on March 6, 1995. This is a brief summary of progress made on these reforms On July 1, 1994 the Service promulgated several policies (FR 59 34270-34275) ensuring that among other things the highest quality information would be used to develop and implement all ESA related activities. Requirements included peer review of listing rules and recovery plans, thus shifting the focus from what information is available at the time decisions are made, to the quality of the information used for the development and implementation of ESA related activities. These requirements will further validate the scientific underpinnings of these activities and unequivocally enhances the credibility of ESA decisions. STATUS 2. All listing rules and over 30 recovery plans have been peer reviewed since the inception of this new policy. In some cases (e g. Steller's eider) the comment period has been extended to allow for formal peer review to be conducted. Provide information to landowners at time of listing Since July 1, 1994 the Service's policy (FR 59 34272) has been to identify those specific actions that would not be considered "take", to the extent known, at the time of listing. Most of these activities include historical land uses within the range of newly listed species, thus avoiding the immediate and complete disruption of economic activities within the range of these species. Furthermore, those actions that are known to be considered violations of take prohibitions have also been identified to the extent that they are known at the time of listing. STATUS 3. All listing (proposed and final) rules have included specific language delineating which actions are to be considered "take" and which would not constitute a prohibited act Small landowner/minimal impacts exemption to minimize social and economic impacts On July 12, 1995 the Administration announced a regulatory proposal for the exemption of certain types of activities from the section 9 prohibitions for species listed as threatened. The proposal would exempt small landowners from the prohibitions of "take" under ESA for activities within lands of 5 acres or less that individually and cumulatively would not result in significant impacts to the species of concern. STATUS On July 20, 1995 the Service published (FR 60 37419-37423) a proposed rule delineating the conditions under which those exemptions would take place assuring that the cumulative effects would not have lasting effects on the likelihood of survival and recovery of threatened species. The Service is evaluating the categorical exclusion of low impact HCPs from the requirements of incidental take permits under section 10(a)(1)(B) for the preparation of NEPA documentation. This will increase the flexibility at least for these almost non-consequential activities No-Take agreements Often times there are alternatives to the development of resources for economic gain that would result in no take of listed species, however, in the past, these approaches had not been fully explored The Service has entered into a number of No Take MOUS (especially in the SE) that delineate specific STATUS 5. At least 8 "no take" MUUs have been developed since the promulgation of thes reforms For example, the Service has entered into the Swan Valley Grizzly Bear Conservation cooperative agreement with the Forest Service, the Montana Department of Public Lands, and the Plum Creek Timber Company This agreement provides section 9 protections for the State and the timber company while providing conservation actions for listed species and allowing normal timber harvesting operations Safe Harbor Policy A number of policies and directives have been issued in the last two or three years but none is more direct than the "safe harbors" concept in providing certainty regarding future actions and the potential impacts of the ESA implementation on those actions. Basically, landowners/managers are protected against future restrictions for take above an established environmental baseline which is determined at the time of entering into the agreement. These "safe harbors" agreements are very popular in the Southeast where more than 15 such agreements have been finalized and many more are in the process of development. STATUS 6. Over 23 "safe harbors" agreements have been reached or are in the process of development. "No Surprises" Policy In July 1994, the Department of the Interior announced a "no surprises" policy regarding previously approved Habitat Conservation Plans. In a nutshell this policy stated that fully operational incidental take permits would not be required to be amended or expanded to include newly listed species that occurred within the permit area. The "no surprises" policy also provides some certainty to already permitted activities under the ESA from future requirements for mitigation for species covered by the issued permit or for requirements for mitigation to address any future listed species. The Service's Candidate Species Guidance and Habitat Conservation Planning Guidance incorporate the "no surprises" policy relative to candidate species. Including candidate species in an HCP is strictly voluntary on the part of permit applicants. However, these two guidance policies provide that if an HCP addresses candidate species as if they were listed, the species subsequently become listed, they may be readily covered under the permit. Consequently, permittees avoid project delays and enjoy long-term certainty. STATUS 7. Since the promulgation of these policies at least 26 multi-species Habitat Conservation Plans have been developed or are in some stage of development and negotiation. Very likely these plans include species that currently are candidates for listing. By including these species in these plans in some cases the need for listing may be precluded or if listing is necessary the certainty regarding the permitted actions is built in the permit prior to listing. Recovery Planning Improvements The Service specifically issued a policy on recovery plan implementation and participation (FR 59 34272-34273). The main goal of this policy is to minimize the economic and social impacts of the implementation of recovery plans. This policy included several noticeable requirements such as: the diversification of the areas of expertise represented in recovery teams in order to adequately address in a comprehensive fashion the local perspective on the recovery of listed species, development of participation plans as a mechanism to involve the local stakeholders in the development of potential alternatives approaches to the recovery of listed species, and |