Lingle v. Chevron U. S. A. Inc. - Oral Argument - February 22, 2005

Lingle v. Chevron U. S. A. Inc.

Media for Lingle v. Chevron U. S. A. Inc.

Audio Transcription for Opinion Announcement - May 23, 2005 in Lingle v. Chevron U. S. A. Inc.

Audio Transcription for Oral Argument - February 22, 2005 in Lingle v. Chevron U. S. A. Inc.

Sandra Day O'Connor:

We will hear argument next in Lingle v. Chevron U.S.A.--

Attorney General Bennett.

Mark J. Bennett:

Justice O'Connor, and may it please the Court:

For 70 years the Federal courts have deferentially reviewed both the efficacy and the wisdom of legislation, even when it affects property interests.

This case squarely presents the question, should we now turn back the clock?

We make two main arguments: first, that the substantially advance test should not be a standalone test for determining whether regulation affects a taking because such a test is fundamentally divorced from a major principle of the regulatory takings doctrine itself, economic injury; and second, if there is such a standalone test, it ought to be no more searching than the rational basis test of due process.

As this Court has stated in First English, the Just Compensation Clause is not designed to interfere with the ability of government to affect property interests, but rather to require just compensation in the event of an otherwise valid taking.

In this particular case, we had a circumstance where one single Federal judge conducted a fact trial where she evaluated the demeanor and credibility of one expert from Chevron and one expert from the State of Hawaii in order to make a determination of whether or not garden variety economic regulation was constitutional or unconstitutional.

There was no... the test applied would have been no different if this had been an act of Congress instead of an act of the Hawaii State legislature.

In this case, what the district court did was wholly inconsistent, we submit, with any reasonable concepts of federalism, and if it had been an act of Congress that this district court judge was sitting in judgment of, it would have been entirely inconsistent with the respect that this Court has consistently said is due to a co-equal branch of government.

A particular irony of the way the Ninth Circuit applied what it believed to be the Agins test, which it indicated the standard of review fell somewhere between rational basis and rough proportionality, but the... the supreme irony of that, we suggest, is that if that test were applied, it would have the effect of overruling the very cases that Agins cited in supporting the language it... it used, that if indeed you have this type of intermediate scrutiny, cases like Nectow and Euclid v. Village of Ambler could not stand because, as this Court has said, those cases set out a rational basis test, whether the object was in the power of the legislature or... or the municipal authority and whether the means used to achieve it were rational.

And the test the Ninth Circuit set up in this case and, as applied by the district court, would have overruled those very cases because there would have been a fact trial necessary to determine whether or not the... the zoning ordinances at issue in that... in those cases were efficacious or inefficacious.

Sandra Day O'Connor:

Well, does the fact that discrete or individual property rights are being affected and, indeed, taken justify some higher level of scrutiny than we would apply to general economic regulation by the State?

Mark J. Bennett:

No, Your Honor.

We... we would think, first of all, this... this Court has established that it doesn't look at whether some stick in the bundle of rights is affected by the regulation.

It looks at the parcel as a whole.

And second, this Court has said that it is shying away from per se tests, and indeed, it... it looks at these types of cases under the rubric of Penn Central where the primary factor that the Court looks at is the extent of the economic injury and also the extent to which it interferes with reasonable investment-backed expectations.

A particular irony of this case is that the Ninth Circuit has said this particular statute of the Hawaii legislature affects a taking without any regard to whether or not it caused any economic injury to Chevron at all.

This Court has found that when the major flaw in legislation or the... the major argument as to why legislation should be deemed to be unconstitutional turns on the legitimacy of the legislation, that finds a natural home in the due process analysis, rather than in an analysis that looks at whether or not the legislation actually effects a taking or not.

Indeed, this Court, Your Honor, despite what it said in Agins in relying on the due process analysis, has never found a taking based upon doubt as to the likely efficacy of economic legislation.

Antonin Scalia:

Well, we've said it a lot, though, haven't we?

Why do we keep on saying it?

Mark J. Bennett:

Well, Your Honor, I think that in... in Del Monte Dunes, every opinion in the case discussed this language and... and said that the Court has never indicated that this sets out a more exacting test than rational basis other than in the rough proportionality context of Nollan and Dolan.

And I think the language used in Agins, which came from due process cases, has somewhat taken on a life of its own, and the lower courts and the... the supreme courts of the several States have had quite... have had a great deal of difficulty in... in dealing with what exactly the language means.

We believe, as we've set forth in our brief, that to the extent it establishes this intermediate scrutiny, as the Ninth Circuit felt it did, that it would be dicta in Agins, but if the Court viewed it as not dicta, we think that the Court ought to reconsider the constitutional rule under the standards for such reconsideration that the Court has identified in cases like Payne v. Tennessee.

Stephen G. Breyer:

Suppose... suppose a person has a piece of property, and they zone it suddenly, no building... no building... which destroys the value of the property pretty much.

Now, should we just... I think those might be the cases where this language began to appear, something like that.

Should that be just a simple rational basis review too?

Because I'm trying to put the case where it might be... arguably you should have something stronger since the property value is... is seriously hurt and--

Mark J. Bennett:

Your Honor, if... if the claim was that the legislation was irrational, that it--