With the February 13 passing of U.S. Supreme Court Associate Justice Antonin Scalia, American jurisprudence lost an intellectual giant. But Justice Scalia will not be forgotten; the legacy of his life’s work lives on.

While much has been and will be written about his landmark opinions and the originalist and textualist methods of constitutional and statutory interpretation he brought to bear in them, Justice Scalia’s significant legal contributions to CEQA, land use and environmental law merit special recognition.

Perhaps foremost among Justice Scalia’s contributions to CEQA is his creation of the constitutional lens through which all land use lawyers view mitigation measures and exactions. CEQA Guidelines § 15126.4(a)(4)(A) and (B) now enshrine the applicable constitutional requirements that mitigation measures must have an “essential nexus” to a legitimate governmental interest and be “roughly proportional” to the impacts of the project. (Id., citing Nollan v. California Coastal Commission (1987) 483 U.S. 825 and Dolan v. City of Tigard (1994) 512 U.S. 374.) Over the years, these “Nollan/Dolan” requirements have been refined (see Ehrlich v. City of Culver City (1996) 12 Cal.4th 854) and expanded to extend beyond the compelled transfer of title to land and to ad hoc imposition of monetary exactions (Koontz v. St. Johns River Water Management Dist. (2013) 570 U.S. ___, 133 S. Ct. 2586). The underlying “doctrine of unconstitutional conditions” has stood the test of time, firmly rooted in Justice Scalia’s deep concern for property rights and his brilliant, groundbreaking Fifth Amendment jurisprudence.

The genesis, of course, was Justice Scalia’s rejection of the California Coastal Commission’s attempted unconstitutional property grab in Nollan. The Commission tried to extract a lateral public access easement across a homeowner’s beachfront lot as a condition of approving a coastal development permit to demolish a small bungalow on the lot and replace it with a larger house. The Commission’s attempted justification was that the larger home would block public views of the ocean from the street, creating a “psychological barrier” to beach access which the easement condition would alleviate. With withering logic, Justice Scalia’s opinion obliterated that justification by pointing out that an easement benefiting only those already present on the beach by allowing them to traverse the Nollans’ property had nothing to do with mitigating any blocked ocean views caused by the new house. Because the “essential nexus” between the project impact and permit condition was missing, rather than being a legitimate land use regulation rationally designed to alleviate the project’s adverse impact, the condition amounted to nothing more than “an out-and-out plan of extortion” — the attempted governmental taking of a private property right for which the Constitution demands payment of just compensation.

Justice Scalia’s regulatory takings jurisprudence has also mightily transformed the field of land use law. Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003 held that state law defines property rights for purposes of taking analysis, and established the “categorical” rule that a regulation’s deprivation of all beneficial economic use of a property constitutes a per se compensable taking. In a footnote, Scalia famously rejected Justice Blackmun’s proposal, in dissent, that just compensation should not be required where the legislature has recited a “harm-preventing” justification for a regulatory restriction precluding all beneficial use. Justice Scalia retorted: “Since such a justification can be formulated in practically every case, this amounts to a test of whether the legislature has a stupid staff. We think the Takings Clause requires courts to do more than insist upon artful harm-preventing characterizations.” (Id. at 1025, fn. 12.)

Justice Scalia’s opinions have also shaped the law of standing – both for environmental group and affected property owner plaintiffs – to challenge actions taken under Federal environmental statutes. (See, e.g., Lujan v. Defenders of Wildlife (1992) 504 U.S. 555 [holding environmental groups lacked standing to challenge federal regulations because they failed to show they would be affected by the rules]; Bennett v. Spear (1997) 520 U.S. 154 [holding standing to bring Federal Endangered Species Act claims extends to those seeking to redress economic injury from government overregulation in violation of ESA].)  Significantly, the last-cited decision also held that a U.S. Fish and Wildlife Service Biological Opinion constituted “final agency action” subject to immediate judicial review under the Administrative Procedure Act.

Much like Justice Oliver Wendell Holmes’ seminal opinion holding that a regulation that “goes too far” can be a taking of property (see Pennsylvania Coal Co. v. Mahon (1922) 260 U.S. 393), Justice Scalia’s opinions elucidating constitutional protections of property rights in the contexts of government land use and environmental regulation espouse legal principles that continue to be applied, refined, and extended. Their continued relevance and vitality are evidenced by the Supreme Court’s recent grants of certiorari in cases involving issues such as the definition of the “relevant parcel” for purposes of regulatory taking analysis (see, e.g., “Will The Supreme Court Loosen The Reins On Regulatory Taking Claims? by Bill Shiber), and whether courts may immediately review as ”final agency action” the U.S. Army Corps’ determinations that jurisdictional wetlands exist on a property – determinations with enormous practical impact that form the basis of the Corps’ Federal Clean Water Act permitting and enforcement authority. (United States Army Corps of Engineers v. Hawke, Supreme Court Case No. 15-290.)

As it probably has with most land use lawyers, Justice Scalia’s work has significantly influenced my own thinking, career and practice. I was fortunate enough to personally witness him in action on the bench at the December 10, 2002 oral argument in Borden Ranch Partnership, and Tsakopoulos v. U.S. Army Corps of Engineers, et al, U.S. Supreme Ct., Case No. 01-1243; 261 F.3d 810 (9th Cir. 2001). That Clean Water Act (“CWA”) case (which I tried in the Federal District Court for the Eastern District of California and argued in the Ninth Circuit Court of Appeals with Ed Regalia) presented issues concerning whether our rancher clients’ plowing of semi-arid rangelands in areas of seasonal wetlands to plant orchards and vineyards required a federal CWA § 404 permit, i.e., whether it constituted the “discharge” from a “point source” (a deep plow or ripper) of a “pollutant” (the native soil turned in place) into “waters of the United States” (the seasonally wet areas of the ranch delineated as “wetlands”).

After losses in both lower courts, which held my clients’ traditional farming activities met the foregoing elements and thus required a section 404 permit, the U.S. Supreme Court granted my petition for certiorari filed on behalf the Borden Ranch Partnership and Mr. Tsakopoulos. The high court ultimately (and disappointingly) deadlocked 4-4 (with Justice Kennedy recusing himself ) and was thus unable to reach a decision, which left the adverse 2-1 Ninth Circuit decision in place. Nonetheless, I will not forget the experience, including Justice Scalia’s encouraging interjection during oral argument that “I never thought a plow was a “point source either!” That comment perfectly encapsulated his preferences for adhering to the plain text of federal legislation (as well as the Constitution), and for avoiding interpretations that would upset the appropriate balance of state and federal powers dictated by federalism principles.

A more recent CEQA litigation experience with California’s Supreme Court further illustrates Justice Scalia’s influence on my own practice. I represented the League of California Cities and three individual counties in filing an amici curiae brief in the California Supreme Court’s much-anticipated and recently decided “CEQA-in-reverse” case, California Building Industry Association v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369. (See “California Supreme Court Holds ‘CEQA-In-Reverse’ Is Not The Norm, Reverses And Remands First District’s Judgment In CBIA v. BAAQMD,” by Arthur F. Coon, posted December 18, 2015.) In that brief, I argued – confidently, and most definitely with Justice Scalia’s textual interpretive methodology firmly in mind – that “CEQA’s plain language, structure, purpose, and operational logic all demonstrate that it does not operate in reverse.” It was gratifying for me and my clients later to read the Supreme Court’s opinion agreeing with this conclusion, and especially the following part of that opinion’s opening analysis: “In light of CEQA’s text, statutory structure, and purpose, we conclude that agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project’s future users or residents.” (Id. at 377.)

Thank you, and rest in peace, Justice Scalia.


Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.