Would it be legal for a US State to ban exports of a natural resource?












10















I am interested in whether a US state constitution could be legally amended to ban exports of specific natural resources (such as coal, lithium or copper) outside it's own state borders.



If such a ban were successful, there would presumably be a fusillade of federal lawsuits from entities that had already invested in the mining of export-restricted resources in the state. What damages if succesful, could the state be liable for? Would the state have a defense against such lawsuits such as force majure? I am particularly interested in contract termination damages if a miner had force majure clauses in their contracts with customers.










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  • Question does not show much work since the answer is an easy "no" based on the black and white wording in the Constitution.

    – George White
    yesterday






  • 2





    Your question has a few too many questions but since it is "if succesful" to which the answer is "NO" I think it will be fine.

    – A. K.
    yesterday











  • @GeorgeWhite Please show me the black and white wording in the constitution you refer to

    – Kevin
    18 hours ago






  • 1





    "I am particularly interested in contract termination damages" Most contracts have a clause in them that allows them to nullify the contract if it becomes illegal.

    – cybernard
    13 hours ago






  • 1





    @Kevin - I was referring to Article I section 8 "3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

    – George White
    13 hours ago
















10















I am interested in whether a US state constitution could be legally amended to ban exports of specific natural resources (such as coal, lithium or copper) outside it's own state borders.



If such a ban were successful, there would presumably be a fusillade of federal lawsuits from entities that had already invested in the mining of export-restricted resources in the state. What damages if succesful, could the state be liable for? Would the state have a defense against such lawsuits such as force majure? I am particularly interested in contract termination damages if a miner had force majure clauses in their contracts with customers.










share|improve this question









New contributor




Brian Topping is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.





















  • Question does not show much work since the answer is an easy "no" based on the black and white wording in the Constitution.

    – George White
    yesterday






  • 2





    Your question has a few too many questions but since it is "if succesful" to which the answer is "NO" I think it will be fine.

    – A. K.
    yesterday











  • @GeorgeWhite Please show me the black and white wording in the constitution you refer to

    – Kevin
    18 hours ago






  • 1





    "I am particularly interested in contract termination damages" Most contracts have a clause in them that allows them to nullify the contract if it becomes illegal.

    – cybernard
    13 hours ago






  • 1





    @Kevin - I was referring to Article I section 8 "3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

    – George White
    13 hours ago














10












10








10








I am interested in whether a US state constitution could be legally amended to ban exports of specific natural resources (such as coal, lithium or copper) outside it's own state borders.



If such a ban were successful, there would presumably be a fusillade of federal lawsuits from entities that had already invested in the mining of export-restricted resources in the state. What damages if succesful, could the state be liable for? Would the state have a defense against such lawsuits such as force majure? I am particularly interested in contract termination damages if a miner had force majure clauses in their contracts with customers.










share|improve this question









New contributor




Brian Topping is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.












I am interested in whether a US state constitution could be legally amended to ban exports of specific natural resources (such as coal, lithium or copper) outside it's own state borders.



If such a ban were successful, there would presumably be a fusillade of federal lawsuits from entities that had already invested in the mining of export-restricted resources in the state. What damages if succesful, could the state be liable for? Would the state have a defense against such lawsuits such as force majure? I am particularly interested in contract termination damages if a miner had force majure clauses in their contracts with customers.







united-states commerce federal-law state-power






share|improve this question









New contributor




Brian Topping is a new contributor to this site. Take care in asking for clarification, commenting, and answering.
Check out our Code of Conduct.











share|improve this question









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share|improve this question




share|improve this question








edited yesterday









A. K.

1,3821127




1,3821127






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asked yesterday









Brian ToppingBrian Topping

15616




15616




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New contributor





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Check out our Code of Conduct.













  • Question does not show much work since the answer is an easy "no" based on the black and white wording in the Constitution.

    – George White
    yesterday






  • 2





    Your question has a few too many questions but since it is "if succesful" to which the answer is "NO" I think it will be fine.

    – A. K.
    yesterday











  • @GeorgeWhite Please show me the black and white wording in the constitution you refer to

    – Kevin
    18 hours ago






  • 1





    "I am particularly interested in contract termination damages" Most contracts have a clause in them that allows them to nullify the contract if it becomes illegal.

    – cybernard
    13 hours ago






  • 1





    @Kevin - I was referring to Article I section 8 "3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

    – George White
    13 hours ago



















  • Question does not show much work since the answer is an easy "no" based on the black and white wording in the Constitution.

    – George White
    yesterday






  • 2





    Your question has a few too many questions but since it is "if succesful" to which the answer is "NO" I think it will be fine.

    – A. K.
    yesterday











  • @GeorgeWhite Please show me the black and white wording in the constitution you refer to

    – Kevin
    18 hours ago






  • 1





    "I am particularly interested in contract termination damages" Most contracts have a clause in them that allows them to nullify the contract if it becomes illegal.

    – cybernard
    13 hours ago






  • 1





    @Kevin - I was referring to Article I section 8 "3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

    – George White
    13 hours ago

















Question does not show much work since the answer is an easy "no" based on the black and white wording in the Constitution.

– George White
yesterday





Question does not show much work since the answer is an easy "no" based on the black and white wording in the Constitution.

– George White
yesterday




2




2





Your question has a few too many questions but since it is "if succesful" to which the answer is "NO" I think it will be fine.

– A. K.
yesterday





Your question has a few too many questions but since it is "if succesful" to which the answer is "NO" I think it will be fine.

– A. K.
yesterday













@GeorgeWhite Please show me the black and white wording in the constitution you refer to

– Kevin
18 hours ago





@GeorgeWhite Please show me the black and white wording in the constitution you refer to

– Kevin
18 hours ago




1




1





"I am particularly interested in contract termination damages" Most contracts have a clause in them that allows them to nullify the contract if it becomes illegal.

– cybernard
13 hours ago





"I am particularly interested in contract termination damages" Most contracts have a clause in them that allows them to nullify the contract if it becomes illegal.

– cybernard
13 hours ago




1




1





@Kevin - I was referring to Article I section 8 "3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

– George White
13 hours ago





@Kevin - I was referring to Article I section 8 "3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

– George White
13 hours ago










3 Answers
3






active

oldest

votes


















20














No



A state may not do that.



The US Constitution Art. I section 8 says:





  1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.




...





  1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;




Art I section 10:





  1. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.




The power to regulate interstate commerce and foreign commerce is exclusive to Congress, no state may exercise it. The power to tax imports and exports is only given in vary limited degree to states, and only by specific permission of Congress.



The Interstate Commerce Clause has been interpreted to mean that a state may not favor its own citizens over citizens of other states in taxation or in commercial privileges, although it may restrict state services to state residents, or charge non-residents higher fees, as for tuition at public colleges.



Even with the consent of Congress, or if passed by Congress, such a law might well be precluded by the Equal Protection clause. Congress may prohibit specific items from being moved in interstate commerce, or it may limit, license, or tax them. But all such regulations must be uniform across the United states, and may not apply only to a specific state.



Regulation of interstate commerce can include regulation of purely intra-state transactions, if they are held to "affect" interstate commerce. This power is very wide-ranging.






share|improve this answer





















  • 4





    Not being able to tax exports to other states is not the same thing as being able ban exports all together

    – Kevin
    18 hours ago






  • 1





    @Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

    – David Siegel
    18 hours ago






  • 1





    Then how is California able to stop anyone from bringing fruit into the state?

    – Shufflepants
    16 hours ago






  • 1





    @Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

    – IllusiveBrian
    13 hours ago






  • 1





    @TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

    – David Siegel
    10 hours ago





















7














I agree with David Siegel's answer but I think its always important in the law to consider what it would take to get what you want. I will say it is possible but not as an export prohibition per se and practically may fail.



The state could use its 5th amendment powers of eminent domain to take possession of all of the desired raw materials and relevant mineral rights for just compensation thus making them all property of The State. Expensive and not sure what the incentive is, but as laws are now, permissible if there is some public benefit. At this point the relevant natural resources would be property of the state and could therefore control where it goes such as keeping the resources in state.



Now assuming that neither budgetary restrictions nor a lawsuit were successful at stopping this measure (two big ifs), The federal government could still take the resources from The State in the same way under eminent domain.



In summary it is possible if:




  1. Your state has large excesses of cash and a desire to be an irrational economic actor AND

  2. the federal government is shutdown for a very very long time preventing operations of the courts and/or solicitor generals office.






share|improve this answer





















  • 6





    I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

    – gerrit
    23 hours ago






  • 3





    Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

    – Peter A. Schneider
    23 hours ago








  • 2





    @gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

    – CCTO
    16 hours ago











  • This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

    – Kevin
    9 hours ago













  • @Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

    – A. K.
    8 hours ago



















5














They can, and do; there's just one wrinkle: They get the assent of the Federal government.



Take the Great Lakes Compact (please, says Nestle and Coke). It's a deal amongst the Great Lakes border states, and provinces, that decide how (or to be more precise, how not) water will leave the Great Lakes watershed. It's an agreement, not a treaty.



But as far as the several states go, you're exactly right, the states couldn't make the deal alone. They got the Federal government to sign off on it, and why wouldn't it, after all? They just went through the formality to get the Federal rubberstamp.



And the water bottling companies are up in arms, because they want to sell the water outside the compact area. They pull the same thing in California with the Sierra watershed, again, protected under a similar compact.





Now let's talk about takings aspect. Even if the state could make a law robbing a mine of its interstate customers, that is a taking - specifically a regulatory taking - under the 5th Amendment. They would have to compensate the property owner for the asset value. So here's a crazy idea. Why not just compensate the owner for the asset value? At that point, it's a consensual sale. The Feds can't possibly object. The company, owned by the state, can sell or not sell to whomever they please. Your objective is achieved, just, in the free market instead of the use of force.



Similarly, there's no question that if the State opened a gravel quarry specifically to feed freeway rebuilding projects, and ABC Paving Co. decided they wanted to buy some of that gravel for paving private driveways, State Quarry Inc. is under no obligation to sell to them.






share|improve this answer



















  • 3





    Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

    – David Siegel
    19 hours ago








  • 2





    @DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

    – Harper
    14 hours ago













  • I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

    – ohwilleke
    12 hours ago











  • @ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

    – Harper
    12 hours ago








  • 1





    You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

    – Harper
    11 hours ago











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3 Answers
3






active

oldest

votes








3 Answers
3






active

oldest

votes









active

oldest

votes






active

oldest

votes









20














No



A state may not do that.



The US Constitution Art. I section 8 says:





  1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.




...





  1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;




Art I section 10:





  1. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.




The power to regulate interstate commerce and foreign commerce is exclusive to Congress, no state may exercise it. The power to tax imports and exports is only given in vary limited degree to states, and only by specific permission of Congress.



The Interstate Commerce Clause has been interpreted to mean that a state may not favor its own citizens over citizens of other states in taxation or in commercial privileges, although it may restrict state services to state residents, or charge non-residents higher fees, as for tuition at public colleges.



Even with the consent of Congress, or if passed by Congress, such a law might well be precluded by the Equal Protection clause. Congress may prohibit specific items from being moved in interstate commerce, or it may limit, license, or tax them. But all such regulations must be uniform across the United states, and may not apply only to a specific state.



Regulation of interstate commerce can include regulation of purely intra-state transactions, if they are held to "affect" interstate commerce. This power is very wide-ranging.






share|improve this answer





















  • 4





    Not being able to tax exports to other states is not the same thing as being able ban exports all together

    – Kevin
    18 hours ago






  • 1





    @Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

    – David Siegel
    18 hours ago






  • 1





    Then how is California able to stop anyone from bringing fruit into the state?

    – Shufflepants
    16 hours ago






  • 1





    @Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

    – IllusiveBrian
    13 hours ago






  • 1





    @TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

    – David Siegel
    10 hours ago


















20














No



A state may not do that.



The US Constitution Art. I section 8 says:





  1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.




...





  1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;




Art I section 10:





  1. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.




The power to regulate interstate commerce and foreign commerce is exclusive to Congress, no state may exercise it. The power to tax imports and exports is only given in vary limited degree to states, and only by specific permission of Congress.



The Interstate Commerce Clause has been interpreted to mean that a state may not favor its own citizens over citizens of other states in taxation or in commercial privileges, although it may restrict state services to state residents, or charge non-residents higher fees, as for tuition at public colleges.



Even with the consent of Congress, or if passed by Congress, such a law might well be precluded by the Equal Protection clause. Congress may prohibit specific items from being moved in interstate commerce, or it may limit, license, or tax them. But all such regulations must be uniform across the United states, and may not apply only to a specific state.



Regulation of interstate commerce can include regulation of purely intra-state transactions, if they are held to "affect" interstate commerce. This power is very wide-ranging.






share|improve this answer





















  • 4





    Not being able to tax exports to other states is not the same thing as being able ban exports all together

    – Kevin
    18 hours ago






  • 1





    @Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

    – David Siegel
    18 hours ago






  • 1





    Then how is California able to stop anyone from bringing fruit into the state?

    – Shufflepants
    16 hours ago






  • 1





    @Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

    – IllusiveBrian
    13 hours ago






  • 1





    @TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

    – David Siegel
    10 hours ago
















20












20








20







No



A state may not do that.



The US Constitution Art. I section 8 says:





  1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.




...





  1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;




Art I section 10:





  1. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.




The power to regulate interstate commerce and foreign commerce is exclusive to Congress, no state may exercise it. The power to tax imports and exports is only given in vary limited degree to states, and only by specific permission of Congress.



The Interstate Commerce Clause has been interpreted to mean that a state may not favor its own citizens over citizens of other states in taxation or in commercial privileges, although it may restrict state services to state residents, or charge non-residents higher fees, as for tuition at public colleges.



Even with the consent of Congress, or if passed by Congress, such a law might well be precluded by the Equal Protection clause. Congress may prohibit specific items from being moved in interstate commerce, or it may limit, license, or tax them. But all such regulations must be uniform across the United states, and may not apply only to a specific state.



Regulation of interstate commerce can include regulation of purely intra-state transactions, if they are held to "affect" interstate commerce. This power is very wide-ranging.






share|improve this answer















No



A state may not do that.



The US Constitution Art. I section 8 says:





  1. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.




...





  1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;




Art I section 10:





  1. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.




The power to regulate interstate commerce and foreign commerce is exclusive to Congress, no state may exercise it. The power to tax imports and exports is only given in vary limited degree to states, and only by specific permission of Congress.



The Interstate Commerce Clause has been interpreted to mean that a state may not favor its own citizens over citizens of other states in taxation or in commercial privileges, although it may restrict state services to state residents, or charge non-residents higher fees, as for tuition at public colleges.



Even with the consent of Congress, or if passed by Congress, such a law might well be precluded by the Equal Protection clause. Congress may prohibit specific items from being moved in interstate commerce, or it may limit, license, or tax them. But all such regulations must be uniform across the United states, and may not apply only to a specific state.



Regulation of interstate commerce can include regulation of purely intra-state transactions, if they are held to "affect" interstate commerce. This power is very wide-ranging.







share|improve this answer














share|improve this answer



share|improve this answer








edited yesterday

























answered yesterday









David SiegelDavid Siegel

14.5k3056




14.5k3056








  • 4





    Not being able to tax exports to other states is not the same thing as being able ban exports all together

    – Kevin
    18 hours ago






  • 1





    @Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

    – David Siegel
    18 hours ago






  • 1





    Then how is California able to stop anyone from bringing fruit into the state?

    – Shufflepants
    16 hours ago






  • 1





    @Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

    – IllusiveBrian
    13 hours ago






  • 1





    @TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

    – David Siegel
    10 hours ago
















  • 4





    Not being able to tax exports to other states is not the same thing as being able ban exports all together

    – Kevin
    18 hours ago






  • 1





    @Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

    – David Siegel
    18 hours ago






  • 1





    Then how is California able to stop anyone from bringing fruit into the state?

    – Shufflepants
    16 hours ago






  • 1





    @Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

    – IllusiveBrian
    13 hours ago






  • 1





    @TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

    – David Siegel
    10 hours ago










4




4





Not being able to tax exports to other states is not the same thing as being able ban exports all together

– Kevin
18 hours ago





Not being able to tax exports to other states is not the same thing as being able ban exports all together

– Kevin
18 hours ago




1




1





@Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

– David Siegel
18 hours ago





@Kevin The Commerce Clause, which grants exclusive power over both interstate and foreign commerce to Congress, is probably more relevant. But when the constitution was adopted, embargoes and similar bans were usually done via the taxing power, which you see was connected to the power of inspections. In any case the absence of the taxing power here implies a general absence of regulatory power, and is consistent with the commerce clause.

– David Siegel
18 hours ago




1




1





Then how is California able to stop anyone from bringing fruit into the state?

– Shufflepants
16 hours ago





Then how is California able to stop anyone from bringing fruit into the state?

– Shufflepants
16 hours ago




1




1





@Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

– IllusiveBrian
13 hours ago





@Shufflepants The restriction appears to be against taxes rather than outright bans, "Imposts and Duties" would both be charging money to import or export.

– IllusiveBrian
13 hours ago




1




1





@TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

– David Siegel
10 hours ago







@TKK I was referring to the Supreme Court's interpretation, which has been rather consistent for quite a few years now, and which, like it or not, is the law of the land, pending a new case that overrules past ones, or a constitutional amendment. I don't agree as a matter of legal theory with some of the Supreme Court decisions on this issue but they are the law within the US. Executive branch interpretations are quite another matter.

– David Siegel
10 hours ago













7














I agree with David Siegel's answer but I think its always important in the law to consider what it would take to get what you want. I will say it is possible but not as an export prohibition per se and practically may fail.



The state could use its 5th amendment powers of eminent domain to take possession of all of the desired raw materials and relevant mineral rights for just compensation thus making them all property of The State. Expensive and not sure what the incentive is, but as laws are now, permissible if there is some public benefit. At this point the relevant natural resources would be property of the state and could therefore control where it goes such as keeping the resources in state.



Now assuming that neither budgetary restrictions nor a lawsuit were successful at stopping this measure (two big ifs), The federal government could still take the resources from The State in the same way under eminent domain.



In summary it is possible if:




  1. Your state has large excesses of cash and a desire to be an irrational economic actor AND

  2. the federal government is shutdown for a very very long time preventing operations of the courts and/or solicitor generals office.






share|improve this answer





















  • 6





    I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

    – gerrit
    23 hours ago






  • 3





    Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

    – Peter A. Schneider
    23 hours ago








  • 2





    @gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

    – CCTO
    16 hours ago











  • This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

    – Kevin
    9 hours ago













  • @Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

    – A. K.
    8 hours ago
















7














I agree with David Siegel's answer but I think its always important in the law to consider what it would take to get what you want. I will say it is possible but not as an export prohibition per se and practically may fail.



The state could use its 5th amendment powers of eminent domain to take possession of all of the desired raw materials and relevant mineral rights for just compensation thus making them all property of The State. Expensive and not sure what the incentive is, but as laws are now, permissible if there is some public benefit. At this point the relevant natural resources would be property of the state and could therefore control where it goes such as keeping the resources in state.



Now assuming that neither budgetary restrictions nor a lawsuit were successful at stopping this measure (two big ifs), The federal government could still take the resources from The State in the same way under eminent domain.



In summary it is possible if:




  1. Your state has large excesses of cash and a desire to be an irrational economic actor AND

  2. the federal government is shutdown for a very very long time preventing operations of the courts and/or solicitor generals office.






share|improve this answer





















  • 6





    I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

    – gerrit
    23 hours ago






  • 3





    Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

    – Peter A. Schneider
    23 hours ago








  • 2





    @gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

    – CCTO
    16 hours ago











  • This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

    – Kevin
    9 hours ago













  • @Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

    – A. K.
    8 hours ago














7












7








7







I agree with David Siegel's answer but I think its always important in the law to consider what it would take to get what you want. I will say it is possible but not as an export prohibition per se and practically may fail.



The state could use its 5th amendment powers of eminent domain to take possession of all of the desired raw materials and relevant mineral rights for just compensation thus making them all property of The State. Expensive and not sure what the incentive is, but as laws are now, permissible if there is some public benefit. At this point the relevant natural resources would be property of the state and could therefore control where it goes such as keeping the resources in state.



Now assuming that neither budgetary restrictions nor a lawsuit were successful at stopping this measure (two big ifs), The federal government could still take the resources from The State in the same way under eminent domain.



In summary it is possible if:




  1. Your state has large excesses of cash and a desire to be an irrational economic actor AND

  2. the federal government is shutdown for a very very long time preventing operations of the courts and/or solicitor generals office.






share|improve this answer















I agree with David Siegel's answer but I think its always important in the law to consider what it would take to get what you want. I will say it is possible but not as an export prohibition per se and practically may fail.



The state could use its 5th amendment powers of eminent domain to take possession of all of the desired raw materials and relevant mineral rights for just compensation thus making them all property of The State. Expensive and not sure what the incentive is, but as laws are now, permissible if there is some public benefit. At this point the relevant natural resources would be property of the state and could therefore control where it goes such as keeping the resources in state.



Now assuming that neither budgetary restrictions nor a lawsuit were successful at stopping this measure (two big ifs), The federal government could still take the resources from The State in the same way under eminent domain.



In summary it is possible if:




  1. Your state has large excesses of cash and a desire to be an irrational economic actor AND

  2. the federal government is shutdown for a very very long time preventing operations of the courts and/or solicitor generals office.







share|improve this answer














share|improve this answer



share|improve this answer








edited 15 hours ago

























answered yesterday









A. K.A. K.

1,3821127




1,3821127








  • 6





    I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

    – gerrit
    23 hours ago






  • 3





    Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

    – Peter A. Schneider
    23 hours ago








  • 2





    @gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

    – CCTO
    16 hours ago











  • This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

    – Kevin
    9 hours ago













  • @Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

    – A. K.
    8 hours ago














  • 6





    I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

    – gerrit
    23 hours ago






  • 3





    Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

    – Peter A. Schneider
    23 hours ago








  • 2





    @gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

    – CCTO
    16 hours ago











  • This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

    – Kevin
    9 hours ago













  • @Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

    – A. K.
    8 hours ago








6




6





I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

– gerrit
23 hours ago





I don't like the second part of point 1; there's nothing irrational about deciding to keep coal in the ground.

– gerrit
23 hours ago




3




3





Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

– Peter A. Schneider
23 hours ago







Upvoted, and not only for the pubic benefits (I'm all for those). In effect one could imagine a state go socialist and make many resources common goods. Interesting constitutional question how this interacts with the prerogative of Congress to regulate interstate commerce.

– Peter A. Schneider
23 hours ago






2




2





@gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

– CCTO
16 hours ago





@gerrit: the question really doesn't bear on keeping coal in the ground; it relates to keeping it in-state once it's mined. Presumably a state could use various regulations (commerce, land use, environmental, transportation) to effectively prohibit coal mining.

– CCTO
16 hours ago













This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

– Kevin
9 hours ago







This is not necessarily true. Depending on state law, it may be necessary for the government actor(s) to have a specific plan in mind before they can condemn a piece of property. Doing nothing and allowing the property to stand idle may or may not pass muster depending on the specific wording of the law.

– Kevin
9 hours ago















@Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

– A. K.
8 hours ago





@Kevin Good point, but if they have the political will to do this in the first place, I'm sure they could easily change the law.

– A. K.
8 hours ago











5














They can, and do; there's just one wrinkle: They get the assent of the Federal government.



Take the Great Lakes Compact (please, says Nestle and Coke). It's a deal amongst the Great Lakes border states, and provinces, that decide how (or to be more precise, how not) water will leave the Great Lakes watershed. It's an agreement, not a treaty.



But as far as the several states go, you're exactly right, the states couldn't make the deal alone. They got the Federal government to sign off on it, and why wouldn't it, after all? They just went through the formality to get the Federal rubberstamp.



And the water bottling companies are up in arms, because they want to sell the water outside the compact area. They pull the same thing in California with the Sierra watershed, again, protected under a similar compact.





Now let's talk about takings aspect. Even if the state could make a law robbing a mine of its interstate customers, that is a taking - specifically a regulatory taking - under the 5th Amendment. They would have to compensate the property owner for the asset value. So here's a crazy idea. Why not just compensate the owner for the asset value? At that point, it's a consensual sale. The Feds can't possibly object. The company, owned by the state, can sell or not sell to whomever they please. Your objective is achieved, just, in the free market instead of the use of force.



Similarly, there's no question that if the State opened a gravel quarry specifically to feed freeway rebuilding projects, and ABC Paving Co. decided they wanted to buy some of that gravel for paving private driveways, State Quarry Inc. is under no obligation to sell to them.






share|improve this answer



















  • 3





    Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

    – David Siegel
    19 hours ago








  • 2





    @DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

    – Harper
    14 hours ago













  • I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

    – ohwilleke
    12 hours ago











  • @ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

    – Harper
    12 hours ago








  • 1





    You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

    – Harper
    11 hours ago
















5














They can, and do; there's just one wrinkle: They get the assent of the Federal government.



Take the Great Lakes Compact (please, says Nestle and Coke). It's a deal amongst the Great Lakes border states, and provinces, that decide how (or to be more precise, how not) water will leave the Great Lakes watershed. It's an agreement, not a treaty.



But as far as the several states go, you're exactly right, the states couldn't make the deal alone. They got the Federal government to sign off on it, and why wouldn't it, after all? They just went through the formality to get the Federal rubberstamp.



And the water bottling companies are up in arms, because they want to sell the water outside the compact area. They pull the same thing in California with the Sierra watershed, again, protected under a similar compact.





Now let's talk about takings aspect. Even if the state could make a law robbing a mine of its interstate customers, that is a taking - specifically a regulatory taking - under the 5th Amendment. They would have to compensate the property owner for the asset value. So here's a crazy idea. Why not just compensate the owner for the asset value? At that point, it's a consensual sale. The Feds can't possibly object. The company, owned by the state, can sell or not sell to whomever they please. Your objective is achieved, just, in the free market instead of the use of force.



Similarly, there's no question that if the State opened a gravel quarry specifically to feed freeway rebuilding projects, and ABC Paving Co. decided they wanted to buy some of that gravel for paving private driveways, State Quarry Inc. is under no obligation to sell to them.






share|improve this answer



















  • 3





    Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

    – David Siegel
    19 hours ago








  • 2





    @DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

    – Harper
    14 hours ago













  • I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

    – ohwilleke
    12 hours ago











  • @ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

    – Harper
    12 hours ago








  • 1





    You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

    – Harper
    11 hours ago














5












5








5







They can, and do; there's just one wrinkle: They get the assent of the Federal government.



Take the Great Lakes Compact (please, says Nestle and Coke). It's a deal amongst the Great Lakes border states, and provinces, that decide how (or to be more precise, how not) water will leave the Great Lakes watershed. It's an agreement, not a treaty.



But as far as the several states go, you're exactly right, the states couldn't make the deal alone. They got the Federal government to sign off on it, and why wouldn't it, after all? They just went through the formality to get the Federal rubberstamp.



And the water bottling companies are up in arms, because they want to sell the water outside the compact area. They pull the same thing in California with the Sierra watershed, again, protected under a similar compact.





Now let's talk about takings aspect. Even if the state could make a law robbing a mine of its interstate customers, that is a taking - specifically a regulatory taking - under the 5th Amendment. They would have to compensate the property owner for the asset value. So here's a crazy idea. Why not just compensate the owner for the asset value? At that point, it's a consensual sale. The Feds can't possibly object. The company, owned by the state, can sell or not sell to whomever they please. Your objective is achieved, just, in the free market instead of the use of force.



Similarly, there's no question that if the State opened a gravel quarry specifically to feed freeway rebuilding projects, and ABC Paving Co. decided they wanted to buy some of that gravel for paving private driveways, State Quarry Inc. is under no obligation to sell to them.






share|improve this answer













They can, and do; there's just one wrinkle: They get the assent of the Federal government.



Take the Great Lakes Compact (please, says Nestle and Coke). It's a deal amongst the Great Lakes border states, and provinces, that decide how (or to be more precise, how not) water will leave the Great Lakes watershed. It's an agreement, not a treaty.



But as far as the several states go, you're exactly right, the states couldn't make the deal alone. They got the Federal government to sign off on it, and why wouldn't it, after all? They just went through the formality to get the Federal rubberstamp.



And the water bottling companies are up in arms, because they want to sell the water outside the compact area. They pull the same thing in California with the Sierra watershed, again, protected under a similar compact.





Now let's talk about takings aspect. Even if the state could make a law robbing a mine of its interstate customers, that is a taking - specifically a regulatory taking - under the 5th Amendment. They would have to compensate the property owner for the asset value. So here's a crazy idea. Why not just compensate the owner for the asset value? At that point, it's a consensual sale. The Feds can't possibly object. The company, owned by the state, can sell or not sell to whomever they please. Your objective is achieved, just, in the free market instead of the use of force.



Similarly, there's no question that if the State opened a gravel quarry specifically to feed freeway rebuilding projects, and ABC Paving Co. decided they wanted to buy some of that gravel for paving private driveways, State Quarry Inc. is under no obligation to sell to them.







share|improve this answer












share|improve this answer



share|improve this answer










answered yesterday









HarperHarper

2,8871215




2,8871215








  • 3





    Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

    – David Siegel
    19 hours ago








  • 2





    @DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

    – Harper
    14 hours ago













  • I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

    – ohwilleke
    12 hours ago











  • @ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

    – Harper
    12 hours ago








  • 1





    You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

    – Harper
    11 hours ago














  • 3





    Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

    – David Siegel
    19 hours ago








  • 2





    @DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

    – Harper
    14 hours ago













  • I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

    – ohwilleke
    12 hours ago











  • @ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

    – Harper
    12 hours ago








  • 1





    You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

    – Harper
    11 hours ago








3




3





Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

– David Siegel
19 hours ago







Note that natural water supplies are somewhat different to other resources, as they are subject to a level of regulation that few, if any, other resources are. Indeed the various states are said to "own" waterways, in trust for the people. Note also that eminent domain with compensation is not a consensual sale, and can be challenged on various grounds, mostly the existence of a proper public purpose.

– David Siegel
19 hours ago






2




2





@DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

– Harper
14 hours ago







@DavidSiegel I'm only using water as an example of how to make interstate treaties work. As far as eminent domain, this is me repudiating it. It's slow, unreliable and a lose for everyone. In my experience 98% of emient domain takings are in fact consensual sales done in lieu of, and typically at positively motivational prices. That works on all but the crazies, and company boards don't have a majority of crazies.

– Harper
14 hours ago















I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

– ohwilleke
12 hours ago





I would disagree on the takings analysis. This would reduce the value of the resource, but so long as it has some valuable use intrastate, it is not a total taking and does not implicate the takings clause. There is also the question of who owns the resource. A state has wider powers as an owner of the property in question than as a regulator. If the state owns the only coal mine in the state, it can decide who to sell it to, but not so, if it merely regulates that coal mine. (Also there is a special exception for Uranium which is the property of the fed gov by statue absent a US license.)

– ohwilleke
12 hours ago













@ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

– Harper
12 hours ago







@ohwilleke I've seen plenty of case law where the takings clause was applied to situations where the government action reduced the value of the property. That's kinda the definition of a regulatory taking: textbook example being a rezoning. , you buy a site zoned commercial and worth $900K and blam, they rezone it residential making it worth $400k. Best way out of that for the city is consensual-buy the parcel for 900k.

– Harper
12 hours ago






1




1





You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

– Harper
11 hours ago





You're right, the zoning discussion in my comment is problematic. But totality is not the issue; try Pennsylvania Coal v Mahon. But rather whether the government is able to dodge eminent domain by calling it a police action pursuant to a public nuisance as in your example or Mugler v Kansas. Exporting mined resources out of the state can hardly be called a public nuisance, so that would definitely be a regulatory taking. Regardless, better to dodge the entire issue with a consensual sale.

– Harper
11 hours ago










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