The just compensation clause of the Fifth Amendment provides that the government may not take private property for public use without just compensation. Initially, this clause applied to the government’s exercise of its power of eminent domain. In eminent domain cases, the government invokes its eminent domain power by filing a condemnation action in court against a property owner to establish that the taking is for a public use or purpose, such as the construction of a road or school, and to allow the court to determine the amount of just compensation due the property owner. In such cases, the government takes title to the property, providing the owner just compensation based on the fair market value of the property at the time of the taking. Supreme Court decisions later established that regulatory takings are also subject to the just compensation clause. In contrast to the direct taking associated with eminent domain, regulatory takings arise from the consequences of government regulatory actions that affect private property. In these cases, the government does not take action to condemn the property or offer compensation, but rather effectively takes the property by denying or limiting the owner’s planned use of the property, referred to as an inverse taking. An owner claiming that a government action has effected a taking and that compensation is owed must initiate suit against the government to obtain any compensation due. The court awards just compensation to the owner upon concluding that a taking has occurred. In 1987, concerned with the number of pending regulatory takings lawsuits and with court decisions seen as increasing the exposure of the federal government to liability for such takings, the President’s Task Force on Regulatory Relief began drafting an executive order to direct executive branch agencies to more carefully consider the takings implications of their proposed regulations or other actions. The President issued this EO on March 15, 1988. According to the EO, actions subject to its provisions include regulations, proposed regulations, proposed legislation, comments on proposed legislation, or other policy statements that, if implemented or enacted, could cause a taking of private property. Such actions may include rules and regulations that propose or implement licensing, permitting, or other conditions, requirements or limitations on private property use. The EO also enumerates agency actions that are not subject to the order, including the exercise of the power of eminent domain and law enforcement actions involving seizure, for violations of law, of property for forfeiture, or as evidence in criminal proceedings. The EO also requires the U.S. Attorney General to issue general guidelines to help agencies evaluate the takings implications of their proposed actions, and, as necessary, update these guidelines to reflect fundamental changes in takings case law resulting from Supreme Court decisions. The guidelines provide that agencies should assess takings implications of their proposed actions to determine their potential for a compensable taking and that decision makers should consider other viable alternatives, when available, to meet statutorily required objectives while minimizing the potential impact on the public treasury. In cases where alternatives are not available, the potential takings implications are to be noted, such as in a notice of proposed rulemaking. The guidelines also include an appendix that provides detailed information regarding some of the case law surrounding considerations of whether a taking has occurred and the extent of any potential just compensation claim. For example, the appendix discusses the Penn Central Transportation Co. v. City of New York case in which the Supreme Court set out a list of three “influential factors” for determining whether an alleged regulatory taking should be compensated: (1) the economic impact of the government action, (2) the extent to which the government action interfered with reasonable investment-backed expectations, and (3) the “character” of the government action. However, the appendix provides a caveat that it is not intended to be an exhaustive account of relevant case law, adding that the consideration of the potential takings of an action as well as the applicable case law will normally require close consultation between agency program personnel and agency counsel. Agency officials and other experts differ on the need to update the Attorney General’s guidelines to reflect changes in regulatory takings case law since 1988. Justice officials said that the guidelines had not been updated since 1988 because there had been no fundamental changes in regulatory takings case law, which is the EO’s criterion for an update. They said that the guidelines, as written, are still sufficient to determine the risk of a regulatory taking and that subsequent Supreme Court decisions have not substantially changed this analysis. For example, officials said the three-factor test outlined in the 1978 Penn Central case remains the most important guidance for analyzing the potential for a taking that is subject to just compensation. Justice officials also emphasized that the guidelines address only a general framework for agencies’ evaluations of the takings implications of their proposed actions and thus are not intended to be an up-to-date, comprehensive primer on all possible considerations. The guidelines state that the individual agencies must still conduct their own evaluations, including necessary legal research, when assessing the takings potential of a proposed regulation or action. The four agencies were divided on the need to update the guidelines. Corps and EPA officials supported Justice’s position that the guidelines do not need to be updated. Corps staff indicated that, based on their review of relevant Supreme Court decisions since 1988, no fundamental change in the criteria for assessing potential takings had occurred and thus no update to the Attorney General’s guidelines was necessary. Similarly, EPA staff said that some of the takings cases decided since 1988 gave the appearance that the Court was changing the three-pronged test set out in the Penn Central decision. However, these officials noted that more recent cases have returned to the Penn Central test, thereby removing the need for updating the Attorney General’s guidelines. In contrast, officials at Interior and Agriculture said that it would be helpful if Justice updated the summary of key takings cases contained in an appendix to the guidelines to reflect significant developments in this case law over the past 15 years. Other legal experts said that the Attorney General’s guidelines should be updated, noting that regulatory takings case law had not remained static over the past 15 years. For example, legal experts concerned with the protection of private property rights said that there had been significant developments in regulatory takings case law since 1988. These experts said that the mere passage of time and the sheer number of regulatory takings cases concluded since 1988 argued for updating the guidelines. In another case, a law professor, who has written and lectured on the issue of regulatory takings, said that the level of specificity with which Justice prepared the original guidelines sets a precedent that calls for updating these guidelines to reflect the many important changes in regulatory takings case law since 1988. The Attorney General has issued supplemental guidelines required by the EO for three of the four agencies—the Corps, EPA, and Interior. The EO directed the Attorney General, in consultation with each executive branch agency, to issue supplemental guidelines for each agency as appropriate to the specific obligations of that agency. The Attorney General’s guidelines state that the supplement should prescribe implementing procedures that will aid the agency in administering its specific programs under the analytical and procedural framework presented in the EO and the Attorney General’s guidelines, including the preparation of takings implication assessments. In general, the three agencies’ supplemental guidelines include specific categorical exclusions from the EO’s provisions for certain agency actions. The Attorney General has not issued supplemental guidelines for Agriculture because Justice and Agriculture could not agree on how to assess the potential takings implications of the latter agency’s actions related to grazing and special use permits covering applicants’ use of public lands. Agriculture argued that such permit actions should be exempt from the EO’s requirements or, if not, that the agency should be allowed to do a generic takings implication assessment that would apply to multiple permits. Agriculture officials indicated that Justice officials did not agree with these suggestions, and the matter was never resolved. While lacking supplemental guidelines, Agriculture officials said that their implementation of the EO and the Attorney General’s guidelines has not been encumbered. Justice officials agreed with this assessment. Although the EO’s requirements have not been amended or revoked since 1988, the four agencies’ implementation of some of its key provisions has changed over time in response to subsequent OMB guidance. For example, the agencies no longer prepare annual compilations of just compensation awards or account for these awards in their budget documents because OMB guidance issued in 1994 advised agencies that such information was no longer required. According to OMB, this information is not needed because the number and amount of these awards are small and the awards were not paid from the agencies’ appropriations but are paid from the Department of the Treasury’s Judgment Fund. In addition, because the number and dollar amounts of just compensation awards and settlements paid by the federal government annually are relatively small, OMB officials said the overall budget implications for the government are small. Hence, in their view, information on just compensation awards in agency annual budget submissions was also unnecessary. OMB and Justice officials said that the relative lack of regulatory takings cases and associated just compensation awards each year is an indication that the EO has succeeded in raising agencies’ awareness of the need to carefully consider the potential takings implications of their actions. Although OMB no longer requires agencies to comply with these EO provisions, the provisions remain in the EO. However, OMB and Justice officials noted that because executive orders are not the equivalent of statutory requirements, non-compliance with these provisions does not have the same implications. Instead, executive orders are policy tools for the executive branch and are subject to changing interpretation and emphasis with each new administration. Other provisions of the EO have been implemented. For example, each of the four agencies has designated an official to be responsible for ensuring that the agency’s actions comply with the EO’s requirements. In general, the responsible official at each agency is the agency’s senior legal official.EPA’s and Interior’s supplemental guidelines specifically identify the designated official by title.