page_69 < previous page page_69 next page > Page 69 for the protection of public health, safety, and welfare. But takings assessment legislation has the potential to be a double-edged sword. Environmental regulations are not the only means of injuring property rights. Agencies can adversely affect property by inaction as well as by action that degrades the quality of the environment in which property is located. So much of property's value depends on the quality of the environment. State takings assessment laws may impose obligations on government agencies to consider injuries to property resulting from government actions that degrade the environment. Environmental legislation does not protect property owners' expectations related to the investment in their homes. For example, those who buy property on a lake or riverfront anticipate that the setting will not only enhance their pleasure but their investment. NEPA will not help them if pollution permitted under state law lowers the value of their property. Of course, sewage disposal and other government activities benefit everyone. Even polluting industries provide benefits by providing jobs and paying taxes. Nonetheless, why should individual property owners be forced to surrender part of what they purchased to achieve these public benefits? Why should the state recognize regulations as takings without addressing these deprivations? Few environmental injuries may rise to the level of a taking, but more claims may qualify for assessment under state laws that seek to expand the definition of a taking. Environmental quality directly correlates with property values. Water and air pollution can decrease the value of property in the surrounding area (Epp and Al-Ani 1979; Mark 1980). Likewise, other studies have shown that airport noise significantly contributes to a decrease in property values (Gautrin 1975; Mieszkowski and Saper 1978). Other disamenitieshazardous waste sites (Michaels and Smith 1990), electricity utility plants (Bloomquist 1974), and nuclear plants (Folland and Hough 1991)can also reduce value. What is significant for this discussion is the evolution of takings law toward ''an increasing acceptance of the possibility of takings without any physical invasion" (Stoebuck 1977, p. 17). Courts have awarded damages under the Fifth Amendment and state constitutional counterparts for government activities resulting in a nuisance that diminishes the value of property. State courts steadily applied the theory of "taking by nuisance" to different cases, creating what Stoebuck describes as "parts of one developing body of law" (ibid., p. 17). The most articulate of these decisions dates from the early 1960s. Thornburg v. Port of Portland involved a claim for compensation based on noise from an airport.15 The plaintiff did not fit within the 15. 233 Ore. 178, 376 P. 2d 100 (1962).   < previous page page_69 next page >