How Green Is Your Constitution?
Associate Justice Sonia Sotomayor recently made a presentation at Case Western Reserve University. It was a private event at which only students were allowed to ask questions.
According to Professor Jonathan Adler, who was in attendance, the first question put to Justice Sotomayor was "whether the takings clause imposes any real limit on the ability of state and local governments to impose environmental restrictions on land-use, such as limitations on mowing private land (a restriction apparently placed on the questioner’s family)."
What an extraordinary question in this age of environmental consciousness.
Put another way, the question (or at least part of the question) is: To what extent can governmental entities (cities, counties or states) mandate that builders, developers or property owners be “green?” Should a city be able to tell you that you cannot grow a “natural” front lawn? Or prohibit you from cutting down trees on your property? Or require you to build to a LEED-
certified rating? Or compel you to install high efficiency furnaces? Or mandate the installation of bike paths at a new development? Or prohibit the use of phosphorus as a lawn fertilizer? At what point do these requirements rise to the level of a taking under the United States and/or State Constitutions?
Justice Sotomayor, in response to the question, sighed and stated “I don’t know the answer to that.” My best guess is that she is going to need to come up with one pretty soon.
