In Kelo v New London we learned a state can seize private property under eminent domain provided that it increases the tax base of the locality. And now in the State of Washington’s lawsuit fighting the travel-ban they have successfully used the argument (amongst others)that the ban will adversely affect the state’s tax base. So is that a trump card a government can use that gives them effective carte blanche? Hey we know your city banned Wal-Marts but the judge ruled you have to allow them to improve the tax base. No your county doesn’t need to abide by EPA regulations since it would lower your tax base. Etc.?
Moved to Great Debates.
Colibri
General Questions Moderator
Probably not.
Kelo dealt with imminent domain, which would have little (if any) relevance to legal analyses of EPA regulations, which are mostly governed by statutes such as the Clean Air Act and and the Clean Water Act, along with a long line of case law dealing with their implementation.
As to the Washington State lawsuit challenging the travel EO, I wouldn’t say the states have successfully argued that point yet, as the district court has not officially ruled on the merits of the case (and the Ninth Circuit’s order similarly did not conclusively address the merits, and in fact made no mention of the tax base argument). Regardless, the states’ argument was important only to the issue of standing – that is, whether the states could even bring the lawsuit in the first place – and is therefore not directly relevant to Clean Water Act or Clean Air Act jurisprudence.
It doesn’t mean the Trump administration is unable to use economic factors in promulgating new regulations – they certainly could (and in fact, economic analysis is one factor in analyzing EPA actions). However, Kelo and the Washington State lawsuit (once we have a definitive court decision) don’t really have a particular relevance to any such hypothetical action by the Trump administration.
No. If I understand correctly, in the current Washington State lawsuit the “tax base” argument is used to give the state standing to challenge the order - they are adversely affected by it - but it’s not a clincher that established that the challenge must succeed.
Many states and Congress have passed laws since Kelo limiting eminent domain in situations like this.
No. The Kelo decision was that local legislatures were answerable to the voters and therefore judges should defer to them on what were reasonable grounds for eminent domain rather than try to impose their own standard.