Passive Takings: The State's Affirmative Duty to Protect Property

The purpose of the Fifth Amendment's Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means that, in at least some circumstances, the Constitution compels the government to protect property. Such liability runs counter to conventional understandings of constitutional law in which the Constitution primarily enshrines negative liberties. And yet this liability follows surprisingly naturally from leading takings and property theory. The Takings Clause, then, can serve as a previously unrecognized basis for affirmative governmental obligations. The Article ultimately illustrates this new category of passive takings with the example of sea-level rise, arguing that ecological threats may compel the government either to respond or pay compensation for the damages resulting from this ecological change.IntroductionConventionally understood, regulatory takings doctrine protects prop- erty owners from significant, adverse changes in the law. The paradigmatic example of a regulatory taking involves a new regulation-environmental protection, zoning limit, and so forth-that interferes with owners' settled and reasonable expectations. In formal terms, the Takings Clause1 provides at least occasional relief from the costs and consequences of legal transi- tions. 2 But what about regulatory inaction? Can the government's failure to regulate, or its failure to act to protect private property, ever amount to an unconstitutional taking? This Article argues that it can.The claim should appear quite startling. The Constitution is typically thought to create only negative rights-rights that constrain the government from acting in certain proscribed ways.3 Takings liability for regulatory inac- tion- what this Article calls passive takings-means that property owners could be constitutionally entitled either to governmental intervention on their behalf or to compensation if the government fails to act. This Article ultimately illustrates the new category of passive takings through the exam- ple of sea-level rise, but the concept potentially applies to property more broadly, in settings as diverse as copyright law and financial regulation.4While the idea of imposing affirmative constitutional duties on the state is unorthodox as a matter of general constitutional law, it is surprisingly consonant with underlying justifications for the Takings Clause. For exam- ple, from a consequentialist perspective focused on regulatory incentives, the Takings Clause is supposed to induce efficient regulatory activity by forcing the government to internalize the costs of its actions.5 But holding the gov- ernment liable only for its affirmative actions can distort governmental deci- sionmaking. In some contexts, governmental inaction is the most costly choice of all. Where that is true, forcing the government to pay for its regu- latory actions but not its omissions will have the perverse effect of deterring the government from doing anything at all, even if a regulatory response could dramatically increase overall societal well-being. Similarly, distributive theories of property concerned with the fair or just allocation of burdens and benefits in society view the Takings Clause as preventing disproportion- ate regulatory burdens.6 But burdens can be unfairly distributed in society through governmental inaction as well. Passive takings liability requires ex- amining the extent of the government's complicity in distributional out- comes rather than focusing exclusively on the categorical but ultimately porous distinctions between regulatory acts and omissions. …