Back in 1995, Professor Epstein famously termed such use of the permit power a “racket,” and as observed very recently by Dave Owen, still today many landowners and conservative critics would agree with the Supreme Court’s description of the process (in Nollan v. California Coastal Commission) as an “out-and-out plan of extortion.” However extortionate such deals may be, regulators with permit power may require landowners to bargain with them before developing their land or else face legal sanctions. This Essay explores in more detail how such bargaining has played out under two of the most important permit regimes in federal environmental regulation: wetlands permits under section 404 of the Clean Water Act and incidental take permits under Section 10 of the Endangered Species Act.



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