Pacific Rim

If you take legendary anime franchise Neon Genesis Evangelion and strip out the pseudo-oedipal pop psychology, crushing angst, fan service, crypto-Judeo-Christian imagery, and enormously surrealistic endings, you can get a pretty good idea of what Pacific Rim is like: ten-story mecha beating up gigantic biological monsters. Good times.

For our purposes, there is a legal issue raised by the movie. We’re going to just sort of hand-wave the Jaeger project as a necessary plot device. But the concept of the “Life Wall,” a massive coastal wall combined with a multi-hundred kilometer safe zone around the Pacific coastline does raise an interesting question about eminent domain and Fifth Amendment takings.

I. Set up

At the beginning of the movie, we learn that “kaiju” Cthulu-like monsters (or Angel-like, if you will) have been emerging from an inter-dimensional portal located in the western Pacific Ocean. The portrayal of the exact location is inconsistent, but it’s suggested to be at the bottom of the Challenger Deep. The first attack hit San Francisco and leveled much of the city. It took the US armed forces several days to take it out using conventional weaponry, as there was apparently no political will to nuke SF. Fair enough. After several more monsters attacked, the governments of the world united to build the Jaegers, enormous mecha controlled by a pair of neurally-linked pilots. The Jaegers proved to be able to defeat the kaiju on a fairly regular basis, and for some time, things appeared to be going okay. Then the kaiju seemed to evolve, and Jaegers started to be defeated. After a series of defeats, the governments of the world decided that the Jaeger project was just too expensive, and anyway, the kaiju were destroying Jaegers faster than they could be constructed. Another option was required.

That option was the construction of a coastal wall around basically the entire Pacific Ocean. There are offhand references to a safety zone behind these walls as well, perhaps three-hundred kilometers. We don’t ever really get to see the wall or the safe zones, but the global governments decide to redirect Jaeger funding to the wall project. Our heroes are basically running an unauthorized operation using the last handful of surviving Jaegers, funded by private monies.

II. Eminent Domain and the Fifth Amendment

So the question here is whether the federal government would actually be legally capable of doing something like this. We’re talking about seizing the entire Pacific coast. Some of the most expensive real estate in the country is there, not to mention strategically valuable natural resources and harbors. Can it even do that?

Well it would represent the largest eminent domain taking in history, but yes, it probably can. The Environment and Natural Resources Division of the Department of Justice actually has a Land Acquistion Section devoted solely to the federal government’s exercise of eminent domain. An excellent summary of the history of federal eminent domain is on their website suffice it to say that eminent domain has been recognized by the Supreme Court as “requir[ing] no constitutional recognition; it is an attribute of sovereignty.” Boom Company v. Patterson, 98 U.S. 403 (1878). So there really isn’t any question that takings are possible.

The question is whether the Takings Clause of the Fifth Amendment comes into play. The clause reads “. . .nor shall private property be taken for public use, without just compensation.” Generally speaking, if the government takes your stuff (outside the context of a criminal or civil forfeiture proceeding) then it has to pay for it, and pay something approximating fair market value. If the government wants to build a road through your backyard, they can do it, but they have to buy the property from you. You can sue them about the price they’re offering, but it’s never going to be what you wanted, and you can’t prevent the sale. So one might think that this means that the government would need to buy the entire Pacific coast if they wanted to build this wall.

Turns out probably not. The courts have long recognized that when the government takes and/or destroys property in the attempt to prevent or mitigate a disaster, that it need not pay for the property. The leading case is perhaps Bowditch v. Boston, 101 U.S. 16 (1879), in which the City of Boston was found to be not liable for the destruction of a building when it was demolished during the Great Boston Fire of 1872. This is known as the “public necessity” exception to the general rule of the Takings Clause. It would be pretty easy to argue that the risk of repeated kaiju attacks constitutes a disaster which would justify a public necessity taking.

The question has to do with the sheer scope of the seizure. We’re talking about a strip of land over a hundred miles wide and almost 8,000 miles long. More than 1.5 million square miles. So we might have to draw a distinction between the land seized for the wall itself—maybe only the mile or three closest to the coast—and this safe zone. I’m not sure the government would be able to justify the exclusion of any use of the entire coast. People currently choose to live in areas which suffer from routine earthquakes, hurricanes, floods, landslides, and wildfires. The government doesn’t—and arguably can’t—stop people from living in those places simply because it’s inconvenient. It can certainly decline to offer subsidies to the residents of those areas, subsidies like flood and earthquake insurance and disaster relief funds. But I’m not sure the government can say that people can’t use that real estate at all without putting it to some other use. That, after all, is part of the language of the Takings Clause: it has to be for some public purpose. Whether it would be able to justify designating the entire Pacific Coast as a no man’s land as a “public purpose” seems like a hard sell, particularly if the government tries to assert the public necessity defense to avoid just compensation.

Now there are examples of governments using eminent domain to acquire property in disaster prone areas. In the aftermath of the 2009 Red River Flood, Fargo, ND used its eminent domain powers to buy over 700 homes in flood-prone areas. But that’s just the thing: they bought them. They did not assert the public necessity defense, and it’s doubtful that the courts would have recognized it if they did. The defense is generally limited to situations which pose an immediate and grave threat to life or property. So while there would be no problem knocking down buildings to fight off a kaiju, and one might even be able to extend that line of reasoning to seizing the entire Pacific coast to build a wall, seizing the next few hundred miles inland to provide a buffer against the threat of future kaiju might be too attenuated. Even if the courts were willing to recognize this as being a legitimate public purpose, they would probably require compensation. The entire federal debt, currently at $16 trillion, doesn’t seem adequate to provide “just compensation” for all that land.

III. Conclusion

The government could almost certainly use its eminent domain powers to build the wall and might even be able to avoid paying for the land under a public necessity theory. But whether they could seize the land required for the buffer zone is another question, and seems far less likely. Even if the courts would permit such a taking, they might require compensation, and that just seems non-viable.