THE ENDANGERED SPECIES ACT, REGULATORY TAKINGS, AND PUBLIC GOODS

Abstract

The Endangered Species Act (ESA) can impose significant limitations on what landowners may do with their property, especially as it pertains to development. These restrictions imposed by the ESA are part of a larger controversy about the reach of the “Takings Clause” of the Fifth Amendment, which says that private property shall not be taken for public use without just compensation. The question this paper addresses is whether these restrictions require compensation. The paper develops a position on the general question of compensation for regulatory takings and applies it to the ESA. The main argument concludes that compensation should be paid. It is based on the proposition that the goods provided by regulatory takings are typically public goods, and on a principle of fairness, which holds that compensation should be paid when those who benefit from a regulatory taking pay virtually nothing and those who pay receive hardly any benefit. It is argued that this principle is implicit in many of the Court's rulings on regulatory takings.