[Federal Register: March 15, 1988 (Volume 53)]
[Presidential Documents]
[Page 8859]
Source: The provisions of Executive Order 12630 of Mar. 15, 1988,
appear at 53 FR 8859, 3 CFR, 1988 Comp., p. 554, unless otherwise
noted.
By the authority vested in me as President by the Constitution
and laws of the United States of America, and in order to ensure
that government actions are undertaken on a well-reasoned basis
with due regard for fiscal accountability, for the financial impact
of the obligations imposed on the Federal government by the Just
Compensation Clause of the Fifth Amendment, and for the Constitution,
it is hereby ordered as follows:
Section 1. Purpose.
(a) The Fifth Amendment of the United States Constitution provides
that private property shall not be taken for public use without
just compensation. Government historically has used the formal exercise
of the power of eminent domain, which provides orderly processes
for paying just compensation, to acquire private property for public
use. Recent Supreme Court decisions, however, in reaffirming the
fundamental protection of private property rights provided by the
Fifth Amendment and in assessing the nature of governmental actions
that have an impact on constitutionally protected property rights,
have also reaffirmed that governmental actions that do not formally
invoke the condemnation power, including regulations, may result
in a taking for which just compensation is required.
(b) Responsible fiscal management and fundamental principles of
good government require that government decision-makers evaluate
carefully the effect of their administrative, regulatory, and legislative
actions on constitutionally protected property rights. Executive
departments and agencies should review their actions carefully to
prevent unnecessary takings and should account in decision-making
for those takings that are necessitated by statutory mandate.
(c) The purpose of this Order is to assist Federal departments
and agencies in undertaking such reviews and in proposing, planning,
and implementing actions with due regard for the constitutional
protections provided by the Fifth Amendment and to reduce the risk
of undue or inadvertent burdens on the public fisc resulting from
lawful governmental action. In furtherance of the purpose of this
Order, the Attorney General shall, consistent with the principles
stated herein and in consultation with the Executive departments
and agencies, promulgate Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings to which each Executive department
or agency shall refer in making the evaluations required by this
Order or in otherwise taking any action that is the subject of this
Order. The Guidelines shall be promulgated no later than May 1,
1988, and shall be disseminated to all units of each Executive department
and agency no later than July 1, 1988. The Attorney General shall,
as necessary, update these guidelines to reflect fundamental changes
in takings law occurring as a result of Supreme Court decisions.
Sec. 2. Definitions.For the purpose of this Order:
(a) "Policies that have takings implications" refers
to Federal regulations, proposed Federal regulations, proposed Federal
legislation, comments on proposed Federal legislation, or other
Federal policy statements that, if implemented or enacted, could
effect a taking, such as rules and regulations that propose or implement
licensing, permitting, or other condition requirements or limitations
on private property use, or that require dedications or exactions
from owners of private property. "Policies that have takings
implications" does not include:
(1) Actions abolishing regulations, discontinuing governmental
programs, or modifying regulations in a manner that lessens interference
with the use of private property;
(2) Actions taken with respect to properties held in trust by
the United States or in preparation for or during treaty negotiations
with foreign nations;
(3) Law enforcement actions involving seizure, for violations
of law, of property for forfeiture or as evidence in criminal
proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and
State or local land-use planning agencies regarding planned or
proposed State or local actions regulating private property regardless
of whether such communications are initiated by a Federal agency
or department or are undertaken in response to an invitation by
the State or local authority;
(6) The placement of military facilities or military activities
involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement
functions thereunder) but not including the U.S. Army Corps of
Engineers civil works program.
(b) Private property refers to all property protected by the Just
Compensation Clause of the Fifth Amendment.
(c) "Actions" refers to proposed Federal regulations,
proposed Federal legislation, comments on proposed Federal legislation,
applications of Federal regulations to specific property, or Federal
governmental actions physically invading or occupying private property,
or other policy statements or actions related to Federal regulation
or direct physical invasion or occupancy, but does not include:
(1) Actions in which the power of eminent domain is formally
exercised;
(2) Actions taken with respect to properties held in trust by
the United States or in preparation for or during treaty negotiations
with foreign nations;
(3) Law enforcement actions involving seizure, for violations
of law, of property for forfeiture or as evidence in criminal
proceedings;
(4) Studies or similar efforts or planning activities;
(5) Communications between Federal agencies or departments and
State or local land-use planning agencies regarding planned or
proposed State or local actions regulating private property regardless
of whether such communications are initiated by a Federal agency
or department or are undertaken in response to an invitation by
the State or local authority;
(6) The placement of military facilities or military activities
involving the use of Federal property alone; or
(7) Any military or foreign affairs functions (including procurement
functions thereunder), but not including the U.S. Army Corps of
Engineers civil works program.
Sec. 3. General Principles.
In formulating or implementing policies that have takings implications,
each Executive department and agency shall be guided by the following
general principles:
(a) Governmental officials should be sensitive to, anticipate,
and account for, the obligations imposed by the Just Compensation
Clause of the Fifth Amendment in planning and carrying out governmental
actions so that they do not result in the imposition of unanticipated
or undue additional burdens on the public fisc.
(b) Actions undertaken by governmental officials that result in
a physical invasion or occupancy of private property, and regulations
imposed on private property that substantially affect its value
or use, may constitute a taking of property. Further, governmental
action may amount to a taking even though the action results in
less than a complete deprivation of all use or value, or of all
separate and distinct interests in the same private property and
even if the action constituting a taking is temporary in nature.
(c) Government officials whose actions are taken specifically for
purposes of protecting public health and safety are ordinarily given
broader latitude by courts before their actions are considered to
be takings. However, the mere assertion of a public health and safety
purpose is insufficient to avoid a taking. Actions to which this
Order applies asserted to be for the protection of public health
and safety, therefore, should be undertaken only in response to
real and substantial threats to public health and safety, be designed
to advance significantly the health and safety purpose, and be no
greater than is necessary to achieve the health and safety purpose.
(d) While normal governmental processes do not ordinarily effect
takings, undue delays in decision-making during which private property
use if interfered with carry a risk of being held to be takings.
Additionally, a delay in processing may increase significantly the
size of compensation due if a taking is later found to have occurred.
(e) The Just Compensation Clause is self-actuating, requiring that
compensation be paid whenever governmental action results in a taking
of private property regardless of whether the underlying authority
for the action contemplated a taking or authorized the payment of
compensation. Accordingly, governmental actions that may have a
significant impact on the use or value of private property should
be scrutinized to avoid undue or unplanned burdens on the public
fisc.
Sec. 4. Department and Agency Action.
In addition to the fundamental principles set forth in Section
3, Executive departments and agencies shall adhere, to the extent
permitted by law, to the following criteria when implementing policies
that have takings implications:
(a) When an Executive department or agency requires a private party
to obtain a permit in order to undertake a specific use of, or action
with respect to, private property, any conditions imposed on the
granting of a permit shall:
(1) Serve the same purpose that would have been served by a prohibition
of the use or action; and
(2) Substantially advance that purpose.
(b) When a proposed action would place a restriction on a use of
private property, the restriction imposed on the use shall not be
disproportionate to the extent to which the use contributes to the
overall problem that the restriction is imposed to redress.
(c) When a proposed action involves a permitting process or any
other decision-making process that will interfere with, or otherwise
prohibit, the use of private property pending the completion of
the process, the duration of the process shall be kept to the minimum
necessary.
(d) Before undertaking any proposed action regulating private property
use for the protection of public health or safety, the Executive
department or agency involved shall, in internal deliberative documents
and any submissions to the Director of the Office of Management
and Budget that are required:
(1) Identify clearly, with as much specificity as possible, the
public health or safety risk created by the private property use
that is the subject of the proposed action;
(2) Establish that such proposed action substantially advances
the purpose of protecting public health and safety against the
specifically identified risk;
(3) Establish to the extent possible that the restrictions imposed
on the private property are not disproportionate to the extent
to which the use contributes to the overall risk; and
(4) Estimate, to the extent possible, the potential cost to the
government in the event that a court later determines that the
action constituted a taking.
In instances in which there is an immediate threat to health and
safety that constitutes an emergency requiring immediate response,
this analysis may be done upon completion of the emergency action.
Sec. 5. Executive Department and Agency Implementation.
(a) The head of each Executive department and agency shall designate
an official to be responsible for ensuring compliance with this
Order with respect to the actions of that department or agency.
(b) Executive departments and agencies shall, to the extent permitted
by law, identify the takings implications of proposed regulatory
actions and address the merits of those actions in light of the
identified takings implications, if any, in all required submissions
made to the Office of Management and Budget. Significant takings
implications should also be identified and discussed in notices
of proposed rule-making and messages transmitting legislative proposals
to the Congress, stating the departments' and agencies' conclusions
on the takings issues.
(c) Executive departments and agencies shall identify each existing
Federal rule and regulation against which a takings award has been
made or against which a takings claim is pending including the amount
of each claim or award. A "takings" award has been made
or a "takings" claim pending if the award was made, or
the pending claim brought, pursuant to the Just Compensation Clause
of the Fifth Amendment. An itemized compilation of all such awards
made in Fiscal Years 1985, 1986, and 1987 and all such pending claims
shall be submitted to the Director, Office of Management and Budget,
on or before May 16, 1988.
(d) Each Executive department and agency shall submit annually
to the Director, Office of Management and Budget, and to the Attorney
General an itemized compilation of all awards of just compensation
entered against the United States for takings, including awards
of interest as well as monies paid pursuant to the provisions of
the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, 42 U.S.C. 4601.
(e)
(1) The Director, Office of Management and Budget, and the Attorney
General shall each, to the extent permitted by law, take action
to ensure that the policies of the Executive departments and agencies
are consistent with the principles, criteria, and requirements
stated in Sections 1 through 5 of this Order, and the Office of
Management and Budget shall take action to ensure that all takings
awards levied against agencies are properly accounted for in agency
budget submissions.
(2) In addition to the guidelines required by Section 1 of this
Order, the Attorney General shall, in consultation with each Executive
department and agency to which this Order applies, promulgate
such supplemental guidelines as may be appropriate to the specific
obligations of that department or agency.
Sec. 6. Judicial Review.
This Order is intended only to improve the internal management
of the Executive branch and is not intended to create any right
or benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or any person.
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