Legal Test for Takings Liability an Issue in Supreme Court Case - 2/28/2005 - Health Asbestos Asbestosis Mesothelioma Lung Cancer

Legal Test for Takings Liability an Issue in Supreme Court Case

The Court last Tuesday heard oral arguments in the case of Lingle v. Chevron U.S.A., which concerns one of the well-established tests for a taking under the Fifth Amendment to the U.S. Constitution — namely, whether a taking arises when a regulation “fails to substantially advance a legitimate government interest.”

Lingle is Linda Lingle, Hawaii’s governor, representing the state.

The precedent that the Supreme Court must consider was established in 1980 in Agins v. City of Tiburon. In that case, the Court said that a taking occurs when a regulation either fails to substantially advance a legitimate government interest, or deprives a property owner of economically viable use of his land.

Chevron, which does business in Hawaii, challenged the statute under the Fifth Amendment Takings Clause, arguing that the rent control “failed to substantially advance a legitimate government interest."

The Ninth Circuit Court, which is usually hostile to takings claims, upheld a trial court decision agreeing with Chevron and specifically endorsed the “substantial advancement” test.

Should the state of Hawaii prevail, it would be a significant reversal of the “legitimate government interest” test for takings liability that was established in 1980.