THE TAKINGS TRAIN HAS FINALLY BEEN STOPPED

If there was one part of the Rehnquist Court jurisprudence that most belied its claim to avoid judicial activism (putting aside Bush v. Gore), it would be its reckless expansion of the takings clause of the Fifth Amendment. The Rehnquist court abandoned the sharp distinction between physical takings and regulatory takings, creating brand-new "rights" for property owners at the expense of land use and environmental policy. Well, all bad things come to an end. Yesterday, they ruled in Tahoe-Sierra Preservation Counsel, Inc. v. Tahoe Regional Planning Agency, Inc. that a 32 month moratorium on development while a land-use plan was being devloped was not a taking, and did not require government payouts to would-be developers. One can only hope that this decision is precedent setting - in ending the judicial assault on environmental policy, and in leaving Scalia, who was so angered by the decision that he couldn't even write a dissent, speechless.