As climate change increases the likelihood and intensity of extreme weather events, the potential for life- and property-threatening catastrophic flooding increases with it. Managed retreat is a coastline management approach intended to mitigate this threat through the systematic removal of human dwellings from areas at high risk for flooding. While controversial in practice for its high potential to further marginalize environmental justice communities, managed retreat’s potential as an adaptation strategy has seen growing—albeit still qualified—acceptance in both academic and policy spheres. Though some frameworks for managed retreat have been successful in small coastal communities, and managed retreat pilot programs have been launched in New York City over the past decade, a tried and true method for implementing such a regime remains elusive. There is a need for a cohesive approach for densely populated, low-income urban floodplains in general, and for New York’s densely populated, low-income urban floodplains in particular. Over the course of this post and its follow-up, I will discuss two proposed frameworks—land buyouts and swaps—and assess the viability of each within the context of New York’s floodplains. This post, which will cover buyouts, will also briefly discuss the history of managed retreat in the United States and the environmental justice issues present in discussions of mitigation paradigms.
There is little doubt that climate change will fuel a need to relocate vulnerable communities. The UN estimates that between 50 million and 200 million people will be displaced globally as a result of a warming world. Though much of New York City is on an island, floods were historically rare prior to anthropogenic climate change. Now, flood events in the area that is now NYC that used to occur every 500 years are happening every 24 years, according to Lisa Grossman in The New Scientist.
Preemptively getting those communities out of harm’s way would seem like the natural first step in any resiliency plan, but in order to appreciate how managed retreat became controversial, there is a need to first understand the history of climate migration. According to a 2016 study in Nature, this requires looking back approximately 80,000 years, to when early humans first left the African continent of the species’ origin as a result of changing weather patterns, which opened up new greenbelts into Europe. In the U.S., where a projected 4.1 million people will face a high risk of flood inundation by 2100—half of them potentially in New York City—relocating communities out of flood zones is a contender for the other great American pastime (sorry, baseball). One of the earliest and most well-documented instances of “community relocation” (the wholesale removal and replacement of a community from a high risk area to a lower risk area) occurred in Niobrara, Alaska, in 1881, according to Nicholas Pinter’s 2021 article. After a harsh winter on the Missouri River caused nearly six feet of flood inundation in town, Niobrara’s 475 residents elected to move themselves and their dwellings—“3 general stores, 2 drug stores, 2 hardware stores, a harness shop, 2 blacksmiths, 5 hotels, 3 physicians, a school, a church, and 2 newspapers,” according to Pinter—to an area of higher ground located two miles away. Ample instances of other wholesale community relocations from flood zones abound in American history, impacting surprisingly diverse geographies: Wisconsin, Arizona, Indiana, Oregon, Nebraska, Louisiana, and California all saw the completion of wholesale community relocation projects in the 19th and 20th centuries. From sea to rapidly encroaching sea.
As with many aspects of climate change, policymaking around managed retreat has been slow, and naysayers who point out the potential for managed retreat regimes to go wrong tend to stall genuine debate about how it could go right. Among the biggest issues with managed retreat are its very real potential impacts to environmental justice communities, especially since so many of the most high-risk dwellings in the city are also low-income and affordable housing: More than half of the approximately 1.3 million NYC residents currently living in or directly adjacent to a floodplain qualify as low-income and identify as non-white. Questions about affordable housing, equitable sharing of costs and benefits, and access to livelihoods are critical factors to consider before implementing any climate mitigation or adaptation strategy, managed retreat very much included. But recent flooding incidents that led to loss of life and property damage—like 2021’s Hurricane Ida, which saw 43 deaths in New York state, and 2012’s Superstorm Sandy, which killed 44 people in New York City alone and inflicted $19 billion in infrastructure damage, much of it to public housing—reveal the environmental injustice that would result from not considering managed retreat at all. Some of NYC’s most vulnerable community members live in floodplains at increased risk of damage every year, and their voices need to be centered in conversations about how to mitigate flood risk. But that need should not forestall consideration of the potential formal, legal approaches to managed retreat that are available at the policy level.
Enter: Floodplain buyouts. In a 2022 newswire, the Congressional Research Service offered a workable definition: “A floodplain buyout is a property acquisition in which a government agency purchases private property, relocates or demolishes any structures on it, and preserves the land as open space in perpetuity to restore and conserve natural floodplain functions.” That excellent description nevertheless leaves out two important factors: First, that the buyout agency can be federal, state, or even municipal; and second, that any relocation or demolition of private property necessarily requires major community buy-in, lest it implicate the Takings Clause of the Fifth Amendment and cause incalculable sums of money to be born by taxpayers. However, even if courts find a taking occurred within a managed retreat plan—and the current Supreme Court has shown a certain vigilance when it comes to takings, if 2021’s majority opinion in Cedar Point Nursery v. Hassid is any indication—the cost to taxpayers of buying out private property may still be offset by the potential future costs of disaster relief, according to Pew Research. This argument is only surprising until one considers that flooding has cost the U.S. at least $1 trillion since 2000.
First, the benefits of buyouts in NYC, which are notable and significant. As Pew discussed:
“Effective buyouts prevent future damage, make people safer, and ideally protect entire neighborhoods or communities. Moreover, once bought-out properties become natural open space, they can provide an added benefit of absorbing additional stormwater, further reducing flooding and helping to conserve habitats.”
In a city like New York, where access to greenspace is a luxury, creating more of it to protect the city’s residents seems like a win-win. Furthermore, one of the biggest hurdles to managed retreat—community buy-in—has not traditionally been a problem in NYC. It’s a point which is best illustrated through a case study from NYC’s past flirtations with flood buyouts. After Sandy, residents from the especially battered Staten Island were offered a federal buyout, overseen by Housing and Urban Development with funding from FEMA, according to a 2022 Gothamist report on the area. There was genuine enthusiasm among homeowners at the prospect of trading their at-risk home for guaranteed federal money, increased flood protection for Staten Island, and the chance to relocate to safety. The application process, which was approached like a real estate transaction, typically took residents 18 months from applying to payout, and ultimately led to the buyout of 500 homes at a total cost of $200 million. The deals also preempted a major argument against managed retreat—that it potentially relocates people away from economic centers, thereby hurting the economy—by incentivizing buyout participants with an additional 10% of their home’s value added to the total payout if they relocated elsewhere on Staten Island.
The federal government oversaw the Staten Island buyout program, partially because it occurred in direct response to a natural disaster in which FEMA was deeply involved. However, there are distinct benefits for state-run buyout programs as well, especially where holdouts may threaten larger buyout projects. In particular, an emerging argument goes that where state acquisition of flooded land is concerned, the Takings Clause may be usurped by the Public Trust Doctrine. In his 2012 article for the Georgetown Law Review, “The Cathedral Engulfed: Sea Level Rise, Property Rights, and Time,” J. Peter Byrne argued that, under the fact-specific balancing analysis for regulatory takings established in the 1978 case Penn Central Transpo. Co. v. New York City, the public’s claim to submerged land, including soon-to-be-flooded land, could weigh powerfully in the government’s favor. “[T]he arguments that regulation of private land protects nearby public trust resources and that those private lands likely will become public through accretion in the foreseeable future must be powerful factors to consider under a Penn Central analysis,” Byrne wrote. “Note that when the public trust applies, the private owner is not just relegated to Penn Central but has no takings claim at all because the public enjoys a superior property interest.”
In her 2022 article for the Duke Law Review, Stephanie Stern agrees with Byrne’s assessment: “Notably, in some states it is not clear whether buyouts are legally necessary to acquire permanently flooded homes because state ‘public trust doctrines’ grant title in submerged land to the state on behalf of its citizens and prohibit private ownership of navigable waters.” In short, if the land in question is going to be flooded anyway, then the public’s right to that land, as enforced by the state, may allow for state ownership without constituting a taking. Whether this is fair to the homebuyers, however, is another question: On one hand, their land is at high risk for flooding and will be lost anyway. On the other hand, if the goal of a mitigation plan is to get people out of harm’s way ahead of the next natural disaster, a buyout regime must be instituted before the catastrophe takes place, and thus before the land is under the purview of the Public Trust Doctrine. Still, it’s a compelling argument when considering the sheer scope of dwellings that will eventually need to be moved to higher ground.
Relatedly, there are significant drawbacks to instituting a buyout regime in NYC, too. First among these is the legal realism that, while homeowners might be offered great incentives to take a buyout, inevitably not all of them will. In the same Gothamist article, the author noted that even as areas of Staten Island were turned into natural flood barriers after others’ homes were bought out, some resident holdouts remained, their homes scattered among overgrown green areas that now serve as wetlands much of the year. Perhaps expectedly, many of these holdouts were retirees or people who could not take the buyout because of title issues or potential foreclosures. Viewed as a case study, even in neighborhoods like those in Staten Island—where a coalition of enthusiastic buyout takers exists—the most vulnerable residents were left behind. This exacerbation of inequality is especially pronounced in a buyout regime. Of those 1.3 million NYC residents currently living in floodplains, many are renters rather than homeowners. Though it is difficult to know exactly how many currently occupied rental units are in flood zones due to a variety of factors, the New York Times reported in 2018 that one in eight new rental apartments were being built in high-risk flood zones, a number that had gone up from 2014, and many of those units were designated as affordable housing. Where homeowners have political power when it comes to flood displacement, renters do not, nor do they receive any of the benefits from a typical buyout.
As buyouts in general are a relatively new tool in the climate resiliency toolbox, there is a lack of information about their impacts. However, the problem of renters being left behind in buyout programs has some research behind it. In their 2021 article in the Journal of Environmental Studies and Sciences, Leah Dundori and Janey Camp wrote that “[r]enters represent an atypical ‘trapped’ population when it comes to relocation programs because they may be economically forced to move to even more climate vulnerable housing.” Looking at the post-implementation impact of buyouts on renters, especially low-income renters, the authors found that the representation of renters in flood recovery is already small in comparison to homeowners:
“This may be due to many factors including renters lack of knowledge of how to apply for assistance, social or cultural barriers such as those faced by undocumented immigrants that are fearful of government authorities, or the fact that repairs to building structures (homeowner assistance) are typically more costly than replacement of the contents (which is the assistance that renters qualify for).” (Internal citations omitted.)
Historic housing inequality also plays a role in flood risk, according to Dundori and Camp. Red-lining and lack of economic investment has led to more Black and Latino renters in cities, while white residents are more likely to be homeowners. When people of color do own their homes, research shows that “homes in minority neighborhoods still receive lower valuations than a similar quality/age home in a predominantly white neighborhood.” Further, because of their lack of power in the eyes of the state, renters of all kinds face huge disadvantages when buyout regimes are implemented. “Renters may also be permanently displaced by these home buy-out programs if an owner chooses to participate in buy-out (with no input from or consideration of the renter) and the home is then no longer available,” write the authors. Further, when a buyout occurs, the landlord is typically under no obligation to offer financial support to the renters they are displacing. Often, that leads to situations in which renters who lost housing after their landlord took a flood buyout end up searching for new housing…in flood zones. If widely implemented, there is a concern that, for the most vulnerable, buyouts will lead to a race-to-the-bottom for many renters who lack the resources to weigh their safety against the affordability of housing.
In short, although buyouts are an important tool in the climate mitigation toolbox, major hurdles to buyout regime feasibility exist in NYC. The number of renters and low-income individuals who are overrepresented in flood zones compared to their wealthy or homeowning counterparts presents the most pressing issue. While buyouts would be useful to implement—and quickly—in some areas of Staten Island, Long Island, and neighborhoods in southern Brooklyn, where there is an outsized risk of flooding and ample homeowners to coalition-build, it is not feasible for much of the population of NYC that currently lives in floodplains. The purpose of government-enacted managed retreat regimes is to protect the vulnerable who otherwise would not be able to get out of harm’s way. While there is no doubt that a diversified “toolbox” is necessary to address the varied nuances of managed retreat, buyouts would get us only part of the way there.
Author: Carolyn Drell, PELR Junior Associate