Item B: Ordinance Concerning Goal 5 Natural Resources Study

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2922 112 SUPREME COURT REPORTER 505 U.S. 1069 the wlnerability of coastal.J.1urolands, see, e.g., 16 U.S.C. ~ 1451 et seq., shapes our evolving understandings of property rights. Of course, some legislative redefinitions of property will effect a taking and must be compensated-but it certainly cannot be the case that every movement away from com- mon law does so. There is no reason, and less .sense, in stich an absolute rule. We live in a world in which changes in the economy and the environment occur with increasing frequency and importance. If it was wise a century ago to allow government " 'the larg- est legislative discretion' " to deal with "'the special exigencies of the moment,'" Mugler, 123 U.S., at 669,8 S.Ct., at 301, it is impera- tive to do so. today. The rule that should govern a decision in a case of this kind should focus on the future, not the past.s The Court's categorical approach rule will, I fear, greatly hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and environmental. regulation. As this case-in which the claims of an individual property owner exceed $1 million-well dem- onstrates, these officials face both substantial uncertainty because of the ad hoc nature of takings law and unacceptable penalties if they guess incorrectly about that law.6 ...!Jg71Viewed more broadly, the Court's new rule and exception conflict with the very character of our takings jurisprudence. We have frequently and consistently recognized S. Even measured in terms of efficiency, the Court's role is unsound. The Court today effec- tively establishes a form of insurance against certain changes in land-use regulations. Like other forms of insurance, the Court's role creates a "moral hazard" and inefficiencies: In the face of uncertainty about changes in the law, develop- ers will overinvest, safe in the knowledge that if the law changes adversely, they will be entitled to compensation. See generally Farber, Eco- nomic Analysis and Just Compensation, 12 Int'I Rev. of Law & Eean. 125 (1992). 6. As the Court correctly notes, in regulatory tak- ings, unlike physical takings, courts have a thl.lt the definition of a taking cannot be reduced to a "set fonnula" and that deter- mining whether a regulation is a taking is "essentially [an] ad hoc, factualinquir[y]." Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978) (quoting Gold- blatt v. Hempstead, 369 U.S., at 594, 82 S.Ct., at 990. This is unavoidable, for the determi- nation whether a law effects a taking is ulti- mately a matter of "fairness . and justice," Armstrong 'II. United States, 364 U.S. 40, 49, 80 S.Cl 1563, 1569, 4 L.Ed.2d 1554 (1960), and "necessarily requires a weighing of pri- vate and public interests," Agins, 447 U.S., at 261, 100 S.Ct., at 2141. Tlie rigid rules ilXed by the Court today clash with this enterprise: "fairness and justice" are often disserved by categorical rules. III .. It is well established that a takings case "entails inquiry into [several factors:] the character of the governmental action, its eco- nomic impact, and its interference with rea- sonable investment-backed expectations." PruneYa:rd, 447 U.S., at 83, 100 S.Ct., at 2042. The Court's analysis tOday focuses on the last two of these three factors: The categorical rule addresses a regulation's "economic impact," while the nuisance excep- tion recognizes that ownership brings with it only certain "expectations." Neglected by the Court today is the first and, in some ways, . the most important factor in takings choice of remedies. See ante, at 2901, n. 17. They may "invalidat[e the] excessive regulation" or they may "allo[w] the regulation to stand and orde[r] the government to afford compensation for the permanent taking," First English Evan- gelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 335, 107 S.Ct. 2378, 2396, 96 L.Ed.2d 250 (1987) (STEVENS, J., dis- senting); see also id., at 319-321, 107 S.Ct., at 2388-2389. In either event, however, the costs. to the government are likely to be substantial and are therefore likely to impede the development of sound land-use policy.