Cite as: 505 U. S. 1003 (1992)
Stevens, J., dissenting
1013. I respectfully disagree and would save consideration of the merits for another day. Since, however, the Court has reached the merits, I shall do so as well.
II
In its analysis of the merits, the Court starts from the premise that this Court has adopted a "categorical rule that total regulatory takings must be compensated," ante, at 1026, and then sets itself to the task of identifying the exceptional cases in which a State may be relieved of this categorical obligation, ante, at 1027-1029. The test the Court announces is that the regulation must "do no more than duplicate the result that could have been achieved" under a State's nuisance law. Ante, at 1029. Under this test the categorical rule will apply unless the regulation merely makes explicit what was otherwise an implicit limitation on the owner's property rights.
In my opinion, the Court is doubly in error. The categorical rule the Court establishes is an unsound and unwise addition to the law and the Court's formulation of the exception to that rule is too rigid and too narrow.
The Categorical Rule
As the Court recognizes, ante, at 1015, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), provides no support for its—or, indeed, any—categorical rule. To the contrary, Justice Holmes recognized that such absolute rules ill fit the inquiry into "regulatory takings." Thus, in the paragraph that contains his famous observation that a regulation may go "too far" and thereby constitute a taking, the Justice wrote: "As we already have said, this is a question of degree—and therefore cannot be disposed of by general propositions." Id., at 416. What he had "already . . . said" made perfectly clear that Justice Holmes regarded economic injury to be merely one factor to be weighed: "One fact for consideration in determining such limits is the extent of the diminu-
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