My Pacific Legal Foundation colleagues Brian Hodges and Daniel Himebaugh have posted a new paper on Nollan/Dolan exactions: Have Washington Courts Lost Essential Nexus to the Precautionary Principle? – Citizens’ Alliance for Property Rights v. Sims, available on SSRN here. The authors’ summary:
ThisArticle examines how Washington State courts have allowed theprecautionary principle to encroach upon the essential nexus test inthe context of land use exactions. The essential nexus test requiresgovernment to establish a cause-and-effect connection betweendevelopment and an identified public problem before placing conditionson development. The precautionary principle, however, endorsesregulation of land use in the absence of causation. Although U.S.Supreme Court precedent requires government to prove causalconnections, recent Washington case law shows that this test ofcausation is morphing into a less scrutinizing means-end test ofrationality. This shift was evident in the recent case of Citizens’Alliance for Property Rights v. Sims. In that case, Washington courtsfound the government’s generalized scientific assessments to satisfythe essential nexus test, even though the science did not establish acausal connection between clearing of rural properties andenvironmental harm due to stormwater runoff. This Article urges courtsto take a more vigorous interest in protecting private property rightsby making causation, not precaution, the driving principle ofenvironmental regulation.
The article is available here.