ENDANGERED SPECIES ACT - A CASE-STUDY IN TAKINGS AND INCENTIVES

In this article, Professor Thompson uses the Endangered Species Act's regulation of habitat to examine the consequences of alternative compe nsation rules. Professor Thompson begins by surveying current implemen tation of the Act. He finds that existing takings law provides propert y owners with little leverage, although the Supreme Court's decisions in Nollan v. California Coastal Commission and Dolan v. City of Tigard could limit how regional Habitat Conservation Plans distribute the bu rden of habitat preservation among property owners. Professor Thompson then scrutinizes the arguments for and against current congressional proposals that would require compensation even where the courts do nor . Examining prior academic analyses of the compensation issue, he crit icizes their assumption that increased compensation invites moral haza rd, as well as their failure to consider the inefficiencies embedded i n the taxes used to pay compensation. Professor Thompson suggests that legislatures should view the compensation issue as a question of opti mal tar policy. He concludes that property owners should receive at le ast partial compensation for regulation of their land and that the com pensation should be funded in significant part through corrective taxe s, such as real estate development fees.