On June 22, the U.S. Supreme Court decided a takings case, Horne v. Department of Agriculture, 135 S. Ct. 1039 (2015). Horne was easy to overlook, followed as it was over the following seven days by King v. Burwell, No. 14-114 (Affordable Care Act), Obergefell v. Hodges, No. 14-556 (same-sex marriage), Michigan v. Environmental Protection Agency, No. 14-46 (Mercury Air Toxics Standards) and Arizona Legislature v. Arizona Redistricting Commission, No. 13-1314(nonpartisan redistricting). And, in the scheme of things, takings jurisprudence may not turn out to matter as much as any of those. Nevertheless, Horne, in which the majority found the federal price-support program for California raisins to work as an uncompensated taking, presents some issues of which environmental practitioners may wish to take note.
Horne involves the price-support scheme for California raisins. (Those old enough to remember the 1980s advertising campaign now have Marvin Gaye playing in their heads, and I can say from personal experience that he will be hard to turn off even as you parse the Fifth Amendment.) Each year, the Department of Agriculture sets a percentage of the raisins actually produced that have to be reserved for the government. The percentage changes year-to-year. The government then gives the raisins away, sells them for export, or does something else with them so they do not increase the supply of raisins on the private market. In this way, the department depresses supply and maintains the market price of those raisins actually sold. If the government receives revenue for the reserved raisins in excess of the government’s costs, the growers or the handlers—a form of middlemen—receive it.
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