Cite as: 505 U. S. 1003 (1992)
Blackmun, J., dissenting
mine what measures would be appropriate for the protection of public health and safety. See 123 U. S., at 661. In upholding the state action in Miller, the Court found it unnecessary to "weigh with nicety the question whether the infected cedars constitute a nuisance according to common law; or whether they may be so declared by statute." 276 U. S., at 280. See also Goldblatt, 369 U. S., at 593; Hadacheck, 239 U. S., at 411. Instead the Court has relied in the past, as the South Carolina court has done here, on legislative judgments of what constitutes a harm.17
The Court rejects the notion that the State always can prohibit uses it deems a harm to the public without granting compensation because "the distinction between 'harm-preventing' and 'benefit-conferring' regulation is often in the eye of the beholder." Ante, at 1024. Since the characterization will depend "primarily upon one's evaluation of the worth of competing uses of real estate," ante, at 1025, the Court decides a legislative judgment of this kind no longer can provide the desired "objective, value-free basis" for upholding a regulation, ante, at 1026. The Court, however, fails to explain how its proposed common-law alternative escapes the same trap.
17 The Court argues that finding no taking when the legislature prohibits a harmful use, such as the Court did in Mugler and the South Carolina Supreme Court did in the instant case, would nullify Pennsylvania Coal. See ante, at 1022-1023. Justice Holmes, the author of Pennsylvania Coal, joined Miller v. Schoene, 276 U. S. 272 (1928), six years later. In Miller, the Court adopted the exact approach of the South Carolina court: It found the cedar trees harmful, and their destruction not a taking, whether or not they were a nuisance. Justice Holmes apparently believed that such an approach did not repudiate his earlier opinion. Moreover, this Court already has been over this ground five years ago, and at that point rejected the assertion that Pennsylvania Coal was inconsistent with Mugler, Hadacheck, Miller, or the others in the string of "noxious use" cases, recognizing instead that the nature of the State's action is critical in takings analysis. Keystone Bituminous Coal, 480 U. S., at 490.
1053
Page: Index Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 NextLast modified: October 4, 2007