In the wake of government-mandated shutdowns due to COVID-19, a common inverse condemnation question keeps coming up: can the impact on private property rights caused by a shutdown result in a compensable taking?
It’s easy to write off the question by responding “Of course the government can interfere with private property rights when confronted with an emergency. It is within the government’s police power to take these measures.” But remember, it has been long recognized that regulation of property that “goes too far” will result in a taking – thus our regulatory takings jurisprudence. The “police power” justification, by itself, is not conclusive.
The more thoughtful response is that the current situation is unprecedented. When else has a global pandemic required a mass, multi-national quarantine and societal shutdowns? Moreover, the shutdowns are not direct physical destruction of or encroachment upon property, such as when government demolishes an unsafe structure. Instead, the shutdowns are regulatory. Thus, their impact on property rights is more abstract.
Because the current circumstances are unprecedented and novel, and because governments must react quickly with limited information on the actual impacts of the pandemic on public health, two legal concepts can be used by government to defend its actions against takings claims: necessity and nuisance.
“Necessity” has been long used to validate government action that destroys private property, without having to pay for the destroyed property, when an emergency requires such action to prevent imminent public danger. This makes sense. Most of us don’t want the government worrying about liability that it might incur in taking actions that are absolutely necessary to avoid public disaster. A useful example of necessity prevailing over the right of compensation is when government preemptively burns private property to create a firebreak in order to combat a wildfire. Generally speaking, the owners of said properties are not entitled to compensation under the necessity exception.
“Nuisance” recognizes that property owners are rarely entitled to compensation for an impact to their property rights caused by government action when that action is taken to prevent or abate a public nuisance. This is so because property owners do not have a right to use their property in a manner that is harmful to others. Nuisance prevention or abatement by the government cannot, therefore, “take” a property right because it never existed. The government may, for example, prohibit use of property that would result in pollution of groundwater without paying any compensation to the owner for that restriction.
When applied to the current COVID-19 pandemic, it’s easy to see how the question of whether government-imposed shutdowns will result in a compensable taking is likely to turn in favor of the government. The government shutdowns, which may have interfered with private property rights, are designed to prevent further spread of a pandemic (an imminent public harm), so they likely will be deemed necessary. Similarly, a virus that is spreading exponentially likely constitutes a nuisance, and the government enjoys wide latitude to restrict uses of property to prevent or abate a public nuisance.
That being said, do not take the existence of these defenses to mean that government may always act without consequence under every circumstance that is labeled an emergency. A basic tenant of our democracy is that we don’t (and shouldn’t) blindly trust our government. The question of whether a compensable taking has occurred will and should turn on the evidence showing the necessity of the government restrictions or the nuisance the restrictions were meant to ameliorate.