When Is Contributing To A Remediation Unconstitutional?

It is not uncommon for many agencies to request that applicants for environmental permits accept conditions to those permits such as payment of money for site remediation. When the agency goes too far, the actions may be unconstitutional.

This issue was addressed in the United States Supreme Court in Koontz v. St. John's River Water Management District. In Koontz, an applicant for a permit to develop on wetlands declined to pay money for outside remediation as demanded by the regulatory agency. He challenged the constitutionality of the agency's demands under the 5th Amendment constitutional right to just compensation.

In a 5 to 4 decision by Justice Samuel Alito, the Supreme Court ruled that there are restrictions on what a government can demand in its approval of land use, regardless of whether it is a request for a permit or the condemnation of property. When an agency demands payments as a condition to the granting of a permit, the agency must show that there