On Thursday June 17 the U.S. Supreme Court issued its long-awaited decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (see Dec. 6, 2009 blog entry concerning the oral argument). The case involved a challenge to a Florida beach replenishment program by a group of beachfront property owners who claimed that it constituted a taking of their property without payment of just compensation. Under Florida’s Beach and Shore Preservation Act, prior to the state funding a beach replenishment project, an “erosion control line” is set at the mean high water line, the existing boundary between state-owned and private property. The Act provides that any accretions of land seaward of the erosion control line (including those caused by the project pumping additional sand) then belong to the state, but beachfront property owners are guaranteed continued access to the water over the state-owned accretions.
The Court unanimously rejected the claim that the beach replenishment program constituted a regulatory taking, agreeing with the Florida Supreme Court that it did not deprive the landowners of any vested property rights. However, in a plurality opinion by Justice Scalia, four Justices endorsed for the first time the notion that a court decision could constitute a “judicial taking” if it eliminates established property rights. Justice Scalia argued that the takings clause is not limited to any particular branch of government. The other four Justices participating in the case (Breyer, Ginsburg, Kennedy & Sotomayor - Justice Stevens recused himself because he owns beachfront property in Florida) found it unnecessary to decide the judicial takings issue because there had been no change in property rights in this case. While only four Justices embraced the notion of judicial takings, Justices Kennedy and Sotomayor suggested in a concurring opinion that a decision eliminating existing property rights could violate the due process clause. This suggests that as state courts grapple with difficult issues of state property law raised by climate change-induced sea level rise, federal courts will be looking over their shoulder. I have posted a more extensive analysis of this case on the new Maryland law faculty blog “Quoth the Raven” at: http://umlaw.typepad.com/quoth/ (June 18, 2010 entry).
As the massive oil spill continues in the Gulf of Mexico, we are reminded that no place on earth has been subjected to such persistent oil spills as the Niger Delta in Nigeria. Adam Nossiter, Far from Gulf a Spill Scourge Five Decades Old, New York Times, June 16, 2010, at A1. In 2006 it was estimated that as many as 546 million gallons (13 million barrels) of oil had been spilled in this area over the previous five decades. This is an amount more than 50 times that released in the Exxon Valdez oil spill, though Royal Dutch Shell maintains that all but 2 percent of these releases are due to theft or sabotage. Some have estimated that the current Gulf spill is pouring out as much oil as the equivalent of an Exxon Valdez spill every four days. Nigerian officials have expressed interest in reassessing their regulations on oil drilling in response to the Gulf spill. Tom Burgis & William Wallis, Shell Faces Tougher Scrutiny of Nigerian Drilling, Financial Times, June 18, 2010, at 3. Gold mining practices in a remote northwestern region of Nigeria have caused such severe lead contamination that at least 163 people, most of them children, have died of lead poisoning. Betsy McCay, Officials Widen Nigeria Lead-Poisoning Tests, Wall St. J., June 17, 2010, at A15. The lead exposure reportedly was caused by wildcat miners digging up ore that contains high concentrations of lead.
South Africa has created 56 special World Cup courts to fast track prosecutions for crimes committed during the month-long event. Two men who allegedly robbed journalists at gunpoint were sentenced to 15 years in prions four days after the offense. Richard Lapper & Roger Blitz, Fast-track Justice Ensures Swift Penalties for Local Lawbreakers, Financial Times, June 17, 2010, at 2. Today my family and I were scheduled to fly to South Africa for the World Cup and a vacation in Kruger National Park. Due to my wife’s cancer surgery last Tuesday, we have had to cancel the trip. However, we are delighted to know that a 14-year old boy from Silver Spring, Maryland who is battling liver cancer will be flying to South Africa with his family in our place today thanks to the Make-A-Wish Foundation. My wife was released from intensive care last Saturday and we are hopeful that she will have recovered sufficiently to come home from the hospital next weekend. We are so grateful for the all messages of caring and support we have received, including those on her website at http://www.caringbridge.org/visit/barbarapercival