Ella: Ripstein, the "Takings Clause" of the 5th Amendment and Preservation of Ecosystem Services

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When reading Ripstein, I was reminded of when I studied the “Takings Clause” of the Fifth Amendment, which states that “Nor shall private property be taken for public use, without just compensation.” We studied this clause in my Environmental Policy class, regarding cases where specific plots of private land must be taken over by the government for public purposes. For example, a highway may need to be built running through private land—when is the taking justified, and what is the standard for “just compensation?” There is no stated standard in the constitution, and the possibility of a standard even existing is unclear, which is a major issue of legal interpretation.


I understand the takings clause of the Fifth Amendment as an exercise of the state’s police power, in order to allow citizens to exercise their individual freedom. It is a framework that was created for cases such as the highway situation, which are sometimes necessary for public purposes. The highway case is a simple example of using the Takings Clause, but a more expansive example can be found in the preservation of ecosystem services. For example, say someone has mangroves on their private land, and the preservation of those mangroves is essential for supporting a vital ecosystem that exists within the county they reside in, beyond their private land. If the owner of that land were not putting in the work to preserve those mangroves, would the county government be justified in taking that land (with compensation) in order to preserve the mangroves? Or, would the government be justified in enforcing certain practices of mangrove preservation for the landowner, interfering with their individual freedom?


Ripstien begins to touch on this on page 254 when discussing the justification of taxation and taking private resources for public purposes. But as such, “consistency and fairness matter.” The main issue with the mangrove case is its clear inconsistency between citizens—if the landowner bought the land before mangroves started to degrade (and therefore necessitate explicit preservation), it seems especially unfair that this circumstance allows their personal freedom and property to be violated further than anyone else’s. So, my blog post is a question to the class—would Ripstein believe the government is justified in taking the mangrove landowner’s private land, because it is necessary for the county’s citizens to exercise their individual freedom, or would it violate individual freedom and remove the state from the "rightful condition?"

Comments

  1. AnonymousMarch 21, 2023 at 12:27 PM

    Ella, this is such an interesting question! It seems as if every situation, like the Mangrove one, can be quite complex. It is hard to find a simple framework from Ripstein's arguments, especially since often individual equal freedom requires a government restriction or police power--counter intuitive. There are a few ways I could see Ripstein going about your questoin. 1) Ripstein highlights multiple times that it is the government is entitled and even obliged to ensure that its citizens most in need of support are supported because otherwise they might end up relying and being subject to other more well off citizens (p. 26). Under this rule, it might be so that the government has reason to do what it needs to support its poorest citizens. 2) Another way this could be looked at is through the concept of entitlement. If mangroves are necessary for the country's economy, now the people who have mangroves have a certain entitlement that could limit others in different ways. This could be viewed similarly to a monopoly. People might start to be restricted from doing interactions because the person's mangroves are under their discretion. 3) Though, the individual equal freedom that each are supposed to have with their land seems like it could trump these other causes. I'm interested to hear other ideas.

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