Regulatory Taking Issues in Environmental Law

This lesson introduces students to one of the constitutional issues that can arise as a result of environmental and natural resources regulation: regulatory takings under the Fifth Amendment to the U.S. Constitution. It begins by giving students an overview of regulatory taking claims, their distinction from physical takings of private property, and some of the rules that apply in evaluating whether a regulatory taking has occurred. It then provides examples of how regulatory taking issues can arise in environmental and natural resources regulation, using the Clean Water Act's Section 404 program and the Endangered Species Act's Section 9 prohibitions as examples.

This lesson assumes that students have been exposed to regulatory taking issues in class but does not require detailed knowledge of regulatory taking law. This lesson also assumes that students are generally familiar with the federal Clean Water Act and Endangered Species Act., although it also supplies the immediately necessary information about both statutes.