The Brandywine Review

Commentary on American law

Environmental and Property Law

Environmental and Property Law

Whether a legislature can impose a formulaic development fee on every parcel in a district without running it through the same individualized scrutiny courts apply to a one off permit condition is, after four decades of exactions litigation, still an open question, and the Supreme Court's most recent word on the subject made the disagreement among the justices who agreed on the result almost as interesting as the result itself.

The doctrine builds in stages. Nollan v. California Coastal Commission, 483 U.S. 825 (1987), required an essential nexus between a permit condition and the government's stated land use interest. Dolan v. City of Tigard, 512 U.S. 374 (1994), added a rough proportionality requirement between the condition and the development's actual impact. Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013), then extended both requirements to conditions demanding money rather than an easement, and to outright permit denials rather than only conditional approvals. Justice Kagan's dissent in Koontz warned that a demand for money, unlike a demand for a specific piece of property, functions more like a tax than a taking and that stretching Nollan and Dolan to cover it would turn a wide range of ordinary land use regulation into a federal constitutional question. The majority extended the doctrine anyway.

Sheetz v. County of El Dorado, 601 U.S. 267 (2024), closed the last obvious escape route, holding unanimously that the Takings Clause does not distinguish between a permit condition imposed by an individual administrator and one imposed by a legislature through a generally applicable ordinance; a traffic impact fee set by a county board must be evaluated under Nollan and Dolan the same way a condition a planning clerk writes into one applicant's permit would be. Justice Sotomayor's concurrence, joined by Justice Jackson, flagged a threshold question the majority left untouched: whether a condition should face Nollan and Dolan scrutiny at all if the same demand, made outside the permitting process, would not have been a compensable taking in the first place. Justices Gorsuch and Kavanaugh wrote separately and in visibly different directions on a related question, how closely a fee calculated by a countywide formula must track the specific impact of the particular project paying it. Sheetz answered who reviews a legislative exaction. It left open how searching that review has to be when the exaction was never calculated with any one project in mind, and that is precisely the question a countywide impact fee schedule presents.

Takings doctrine measures what government may extract from an individual owner. A separate, harder question asks what a state constitution requires government to protect for everyone, and Pennsylvania and Montana answer it in two different registers. Pennsylvania's environmental rights amendment, ratified in 1971 as Article I, Section 27, gives the people a right to clean air and pure water and makes the Commonwealth trustee of the state's public natural resources for the benefit of both the present public and future generations. For four decades courts mostly treated that language as aspirational. Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013), a plurality opinion, broke from that pattern and struck down provisions of the state's oil and gas law that preempted local zoning, holding that Article I, Section 27 sits on equal footing with the rest of the state's Declaration of Rights rather than beneath it. Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017), went further and read the trustee language as imposing actual fiduciary obligations, holding that royalties from oil and gas leases on public land are trust principal that the legislature cannot simply redirect into the general fund.

Montana took the same kind of dormant clause somewhere Pennsylvania's courts have not gone. Held v. State, 2024 MT 312, 560 P.3d 1235 (Mont. 2024), held that the state constitution's guarantee of a clean and healthful environment includes a stable climate system, and struck down a statutory provision barring state agencies from considering greenhouse gas emissions in environmental review. Where Pennsylvania's cases run through the language of trust and stewardship, remedying violations by redirecting how public resources are managed, Montana's ran through the language of individual right, remedying the violation by striking the offending statute outright. That is not a small difference. A trust theory gives a plaintiff standing to insist that public resources be spent consistently with the trust; a personal right theory gives a plaintiff standing to challenge legislation on its face. A dozen or more state constitutions carry environmental language written in the same era as Pennsylvania's and never litigated this way. Which of the two readings a court reaches for first will decide what that language is actually worth.