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Abstract

In Edwards Aquifer Authority v. Bragg, the Court of Appeals of Texas, San Antonio held that the Edwards Aquifer Authority’s water well permitting plan amounted to a compensable taking of a pecan farmer’s private property. The court determined that the water regulation was so onerous that it was analogous to physical seizure of property by eminent domain. In its analysis, however, the court fatally misapplied the multi-part Penn Central test. The court implicitly framed the four Penn Central factors as elements instead of utilizing a more appropriate holistic balancing test. Framing the test in such a way improperly stacks the deck in favor of the private interest. If other courts adopt the Bragg version of the Penn Central test, “regulatory takings” will expand beyond their reasonable bounds as a cause of action and disastrously undermine states’ ability to implement environmental regulation.

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