Frequently Asked Questions

Q. What is a taking?

A. According to the U.S. Supreme Court, a taking is a government action that removes all economically viable use of property. The term comes from the Takings Clause of the Fifth Amendment of the U.S. Constitution, which states: “nor shall private property be taken for public use without just compensation.”

Q. Isn’t the takings issue simply about enforcing the Constitution?

A. Many takings advocates contend that they are simply trying to vindicate the letter and the spirit of the Constitution itself. This argument is based on myth – the reality is that their agenda is based on expanding takings beyond the original intent, and revising the standards and procedures governing takings claims to include compensation to a property owner for any negative financial impact from a regulation.

Q. If a property owner suffers a burden, why shouldn’t the public pay?

A. There are two basic answers to this argument. First of all, in a democratic society, there is nothing unusual or inappropriate about our elected officials regulating activities which are harmful to society. This type of regulation has happened for decades through, for example, zoning restrictions. Current judicial interpretations of the Takings Clause support such restrictions and state that compensation is due only when all economic use of the property is eliminated by the regulation.

Secondly, most regulations actually produce a benefit for the property owner as well as the surrounding community – for example, by regulating the placement of a sewage treatment plant. This benefit, along with other benefits enjoyed by the property owner, such as subsidies, tax advantages, and government services, should be balanced against the burden allegedly imposed by the regulation. After all, property owners do not compensate the taxpayers for the givings they receive.

Q. Shouldn’t government pay for the costs of its actions?

A. If government had to pay for every economic burden it imposed, its ability to protect public health and the environment would grind to a halt. It could cost each state billions of dollars to compensate property owners for every negative financial impact of regulations.

Q. Isn't it the environmentally destructive landowners that are unfairly taking from their neighbors and community?

A. Yes. What is often overlooked is the fact that those fighting for takings legislation are usually doing an environmentally destructive activity that adversely affects their neighbors and community. When a factory farm opens up a large confined animal feeding operation (CAFO), the community’s groundwater, rivers, and streams are often contaminated and neighbors must breathe toxic air. When a developer destroys wetlands, flooding increases and more toxins reach our waterways.

Q. Who is fighting takings bills?

A. A broad coalition has opposed efforts to expand the intent of the constitutional provisions and revise the standards and procedures governing takings claims at both the federal and state levels. The coalition includes state and local officials, religious organizations, environmentalists, unions, taxpayer watchdog groups, and many academic scholars.