Fifth Amendment

The Fifth Amendment's Takings Clause ("nor shall private property be taken for public use, without just compensation") has emerged in 2026 as the central constitutional instrument used by data-centre developers to challenge government moratoriums. The doctrine covers both direct physical takings and regulatory takings, where a law or order so restricts property use that it effectively seizes economic value without compensation. Two concurrent actions are testing this doctrine's reach: RCM Hill LLC's $100 million federal lawsuit against Hill County, Texas over the moratorium on its 1,235 MW Project Aquila campus , and a rehearing challenge filed on 28 May 2026 arguing the DOE's Section 202(c) curtailment order constitutes a physical and regulatory taking of backup-generation assets.

Regulatory takings law in the US has two main standards: the categorical LUCAS test (regulations that eliminate all economic value are per se takings) and the multi-factor Penn Central test (weighs economic impact, interference with investment-backed expectations, and the Nature of the government action). Courts have historically upheld emergency grid curtailment as settled regulatory power. The Hill County situation is more novel: a local legislature enacting a moratorium specifically targeting a single named class of industry has weaker precedent protection.

Hill County voted unanimously to rescind its moratorium on 4 June 2026, seven days after RCM Hill filed the suit, a pattern regulators and developers elsewhere will note. RCM Hill's lawsuit remains active; the developer still seeks damages and a court declaration, meaning the underlying constitutional question will proceed regardless of the repeal.