While New York and New Jersey recover physically from Tropical Storm Sandy, law professors and practitioners are examining the adequacy of the legal system to respond to worsening storms associated with climate change.  Legal Issues in Managed Coastal Retreat was the name of a forum on the topic at Columbia Law School on March 28th. The following week the Maurice A. Deane School of Law at Hofstra explored Recovery and Rebuilding After Superstorm Sandy – Legal Perspectives. One of several paradigm changes in environmental and land use law that I explore in an essay written for Fordham’s Environmental Law Review’s 20th Anniversary issue is the shift in public opinion and legal policy between 1992 and 2012 regarding the safety and wisdom of development in vulnerable coastal areas, which has refocused the law from accommodating and controlling a rush to the shore to developing novel strategies for retreating from the sea.

These issues are explored in my articles for the Brooklyn Law Review entitled Land Use and Climate Change: Lawyers Negotiating Above Regulation, and for the Fordham Environmental Law Journal entitled Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development.

In 1992, developers and home buyers were rushing to develop and live in coastal communities. Today, many of them realize that much of this development is in harm’s way, within reach of the next Sandy or Katrina and vulnerable over time to inundation as sea levels rise. In the wake of Sandy, Katrina, and other recent catastrophes, local officials are struggling to determine the most effective land use options for their communities. As they do, one observes a gradual retreat from the sea — a retreat hastened by higher flood and wind insurance rates; expanded flood plains; higher elevations required for new development; and increasing reluctance by developers, investors, and purchasers to build, finance, and buy at the ocean’s edge.

In our federal system, the primary authority to regulate land use and shape human settlements resides at the local level.[1]  Prudent planning suggests that local governments use this power to designate no-build zones where it is likely that storm surges and sea level rise will destroy or inundate newly-constructed buildings during their useful lives.  Land use plans and zoning that permit the construction of homes and other buildings in areas mapped for inundation by sea level rise do just the opposite: they allow development in high-risk coastal zones to the detriment of home buyers, tenants, equity investors, mortgagees, and taxpayers who pay for public infrastructure in such areas.

This insight, however, was scarcely on the minds of regulators in 1992 when Lucas v. South Carolina Coastal Council was decided.  Lucas, nonetheless, is the applicable precedent, and it raises a serious question: do regulations that prohibit building on fragile coastal lands destroy all economic value and thereby constitute a total taking, or does regulatory takings jurisprudence harbor exceptions that validate such regulations under today’s changed circumstances?

The Lucas Court held that a regulation that destroys all economically viable use of property is a taking unless, under the background principles of the state’s law, the use that the regulation prohibits is not part of title to the property to begin with. So, for example, if the state’s nuisance law would allow surrounding property owners to enjoin an owner’s use of land for dangerous enterprises like brick-making, a regulation that prevents such use is not a taking.  On remand, the state court in Lucas found that nuisance law in South Carolina at the time constituted no bar to the development proposed by owner of the regulated lots.

The majority referred to the Court’s habit of resorting to existing rules of state law  to define the range of interests that qualify for protection as ‘property’ under the Fifth and Fourteenth Amendments. “The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition (though changed circumstances or new knowledge may make what was previously permissible no longer so).”

Are sea level rise, newly fierce and more frequent coastal storms, and devastating storm surges “changed circumstances”? Are recent scientific reports on and official maps of projected coastal inundation “new knowledge”? Is it possible that new information about the harm to the coastal environment and our newfound appreciation of ecosystem services would now sustain a nuisance claim against coastal development in some locations? How will the Court accommodate a fundamental change in state policy in South Carolina that bespeaks a retreat from the sea? Since Lucas, that state’s legislature has recognized that that development has been sited too close to the sea and has deemed it in the public and private interest to protect the coastal ecosystem from this “unwise development.” Because armoring coastal development with dikes, levees, floodwalls, seawalls, bulkheads, groins, and tidal barriers provides a false sense of security, South Carolina chose to severely restrict the use of hard erosion control devices to armor the beach/dune system, clearly retreating from the sea.

Looking forward, several novel legal questions arise. Do developers with knowledge of potential future damage to proposed developments have reasonable investment-backed expectations for building in vulnerable areas? Under the public trust doctrine, does the state have some sort of enforceable future interest to prevent development in high risk zones? Do regulations that allow only the natural use of fragile ecosystems or provide only minimal use of the land consistent with projected storm damage escape Lucas’s axe? The answers to these questions will shape how state and local regulators control coastal development. Will they be bold and adopt no-build zones, or will they be more cautious while they wait for answers to these questions to be provided?

[1] See John R. Nolon, Historical Overview of the American Land Use System: A Diagnostic Approach to Evaluating Governmental Land Use Control, in Comparative Land Use Law and Global Sustainable Development (2006).