St. Mary's Law Journal


Increasing environmental regulation has resulted in an antiregulation backlash and the growth of a property rights movement. Unable to successfully use the courts to protect private property from diminution in value due to government regulations, property rights advocates have looked to the federal and state legislatures for assistance. This has led to some states and the United States Congress to introduce private property rights protection. This protection generally takes one of two forms. The first requires the government to assess the possible effect on property rights before enacting regulations. The second requires the government to compensate property owners for the diminution in property value government regulations cause. Texas joined its fellow states in enacting its own property rights protection, the Private Property Rights Preservation Act (the Act). The Act allows property owners whose property is diminished in value at least twenty-five percent by government regulation to sue the government entity which issued the regulation. If the suit is successful, the government must rescind the regulation or pay the property owner the property’s lost value. The Act also requires government entities to prepare a Takings Impact Assessment prior to enforcing any regulations which could affect the value of private property. The Takings Impact Assessment must determine whether the regulation or alternative actions constitute takings. By providing a statutory bright-line definition of regulatory takings at a twenty-five percent reduction in the value of real property, the Act tips the scale in favor of private property owners in the limited number of cases in which it applies. Moreover, by requiring takings impact assessments, the Act may increase government regulators’ awareness of private property rights relative to other public interests. Whether the Act serves its intended goal will depend on the complex interaction of regulators, property owners, the courts, and ultimately the public.


St. Mary's University School of Law