March 01, 2014

Koontz: An Evolution—Not a Revolution—in Takings Law

Mohammad O. Jazil

The U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013) stands for a simple and seemingly reasonable proposition: government should not do that which it cannot explain. Yet at oral argument, the United States warned that the Court’s decision “would constitute a radical change in the way standard, generally applicable regulatory programs are operated,” making it difficult to permit, for example, “coal-fired power plants.” Transcript of Oral Argument at 46, 48. The dissent explained that the majority opinion in Koontz would force governments to simply reject permits without first attempting to find common ground with applicants, resulting in vexatious litigation. And, in a New York Times editorial, a prominent law professor suggested that the decision in Koontz might literally cause garbage to pile up on Main Street. See John D. Echeverria, A Legal Blow to Sustainable Development, N.Y. Times, June 26, 2013. Given such dire consequences, one wonders whether a simple and reasonable proposition was worth establishing. It was. As this article explains, much of the criticism surrounding Koontz amounts to nothing more than momentary hyperbole. Koontz has not upended the well-entrenched administrative state, rendered government mute when dealing with the people it serves, or made government so impotent that it cannot provide essential infrastructure services like waste disposal.

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