The Cathedral Engulfed: Sea-level Rise, Property Rights, and Time

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims.

This article from Georgetown Law University analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise, and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters.

Part I of the article reviews the threat that sea-level rise poses to coastal resources. This involves both what can be said about how fast the seas will rise and what physical effects such rise will entail, as well as the economic and environmental consequences of such rise. 

Part II describes the chief types of regulatory responses to sea-level rise that can be anticipated and also presents the distinctive regulatory takings issues that each type of regulatory response can be expected to generate. 

Part III presents possible approaches that conscientious regulators can take to encourage or mandate retreat while minimizing takings risks or liability. Each approach exploits the temporal dimension in sea-level rise - enacting legal changes now to facilitate more effective adaptation in the future as waters mount higher and storm surges come further inland.

This Article argues that the most fruitful environmental response to sea- level rise is a retreat from the rising seas, i.e., development regulations that prevent most new construction and rebuilding in the zones most affected by sea-level rise. Retreat, however, also raises the most troubling takings issues. Retreat regulations present difficult takings problems, because they may prohibit all economically valuable development on a lot. But the article suggests various ways to capitalize on the future nature of sea-level rise to structure regulations and other government initiatives to minimize the risk or amount of takings liability. It argues that takings doctrine should not be so rigid as to prevent needed systematic adaptation.

 

Publication Date: 2012

Author or Affiliated User:

  • J. Peter Byrne

Related Organizations:

  • Georgetown Law

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Resource Types:

  • Legal Analysis

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