Panel 3: “Perspectives from Law and Policy”

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Professor Ronald Rosenberg (William & Mary Law School) moderated the third panel on Saturday. This panel discussed legal issues local governments will face when dealing with sea level rise. The panel was composed of Professor Peter Byrne (Georgetown Law Center), Professor John Echeverria (Vermont Law School), and Professor John Nolon (Pace Law School). Byrne started the panel by discussing Koontz v. St. Johns River Management District. According to him the three main constraints on local governments are 1) local politics, 2) state authorizing statutes, and 3) the takings clause, as interpreted by the US Supreme Court. Traditionally, the takings clause hasn’t been that much of a limitation and was only invoked if regulation destroys all of the economic value of a property. However, based on Koontz,this could become more difficult. Byrne asked, should the decision be viewed as heavily damaging or complicating, but manageable? In order to make it bearable, Byrne thinks local governments should interpret Koontz narrowly, just applying it to transfers that extort money to the government and not to broader situations, such as requiring property to be built higher. However, in order to have a workable exaction system, Byrne stressed that local governments need to have a solid model complete with good GIS data so that they can accurately estimate costs. What Koontz requires from local governments is a more thorough connection of regulation to the nexus. So, in the end Byrne doesn’t think Koontz is that bad and may actually help local decisions become better. Echeverria replied that for a different take on Koontz, you should read his recent article.

 

Echeverria addressed two issues. First, he addressed the question: can you prevent building without being vulnerable to takings claims? This is important to local governments, because of the associated high costs of litigation. These kinds of takings cases are also problematic in that they could unjustly reward a negligently risky owner. In addressing this, Echeverria looked at Lucas v. South Carolina Coastal Council as an example of a locality that prevented building, which resulted in a successful takings claim. Byrne said that he thinks Lucas is maladaptive, because effective regulation likely removes all economic viable use. Byrne further thinks that a nuisance defense to Lucas takings claims are likely of little utility.

 

Echeverria continued by briefly going over riparian property rights and the fact that the government usually owns up to the mean high water line and so eventually the government will own everything that is covered by rising sea levels, although he noted this isn’t a practical solution. Because of the level of uncertainty with what is coming and this area of law, Echeverria thinks it is important to approach the problem with multiple approaches. A historical situation that he thinks is analogous to the problem we face and may have something to teach us is the response to large city fires in the 19th century. Footnote sixteen in Lucas may enable governments to be absolved of takings claims if building limitations related to sea level rise mitigation strategies can be termed as preventing “grave threats to the lives and property of others.” Even if climate change can be found to be such a grave threat, he worries about the ability to satisfy an imminent peril standard. He closed on this issue by saying that the importance of confronting public perils outweighs the normal protections for private property rights. He cautioned that even if takings claims can be avoided, that doesn’t mean the government shouldn’t compensate victims of climate change.  Instead, this compensation should be done under a more appropriate framework.

 

Second, Echeverria addressed the role eminent domain has to play in addressing climate change. Usually in these situations there is no debate as to whether the property is being taken. However, the value may be artificially high, because the market is ignorant (maybe by choice) of climate change. In a similar vein, he wondered how to address the inflation in coastal prices due to voluntary buyout programs and coastal flooding insurance programs. Eminent domain is also unpopular. Echeverria mentioned Bloomberg giving taken land to developers as an example of when some of this skepticism may be justified.

 

Nolon stated that Koontz challenges lawyers how to negotiate without making an unconstitutional decision. He also mentioned a recent article that he wrote. Under the Standard Zoning Enabling Act, communities are empowered to use regulation to use land the most appropriately. Based on this, communities could maybe make no-build-zones. This would also benefit the communities by reducing their flood insurance rates. However, he thinks that currently this the least likely decision localities will make. Nolon is also hopeful that Lucas should/would be interpreted differently now with our new sea rise models.

 

Nolon was impressed with the maps Hershner shared and thinks that localities need to adopt them into their comprehensive plans. Then, when developers seek approval for projects, they can be required to locate their project on the map. Based on this starting point, localities can use contingency negotiating to require escrow accounts and/or letters of credit that make them liable for any harm that comes from flooding or sea level rise shown on the maps they are disputing. Nolon stressed to the lawyers and law students in the audience that being a good negotiator is of central importance. This is particularly applicable in trying to create no build zones without dealing with Lucas takings. Nolon also advised any law students in the audience to take land use and local law courses if they still can before they graduate. Nolon finished by introducing the concept of the climate bubble. He thinks that secondary mortgages and insurers are starting to back away from coastal properties. Communities in California that are very close to being out of water and may soon be fallow are another example of this.

 

The first audience question asked whether a community could be held liable for not preventing someone from building where they really shouldn’t. Rosenberg answered that this kind of negligent regulatory argument is rarely successful. Nolon said that a database has been made of cases like this and a few are successful, but most are not, because “how could you let me be so stupid” is not a strong claim.

 

The second audience question asked if removing road/power access constitutes a taking. Byrne said the standard legal application is that if you remove road access, and thereby destroy economic value, this is a taking. Byrne said that a lower court in Florida recently applied this principle in a case where a community decided to stop maintaining a frequently flooded road. He reflected that this seems unconscionable and is indicative of people seeming to think that they have a Constitutional right to a subsidy. Nolon thinks that a voluntary buyout is the most viable option for this kind of situation. He thinks the public is going to end up paying something and the only question is how much and under what terms. Rosenberg said that usually once the public agrees to serve an area, they are obligated to do so continuing forward although he thinks this may need to change.

 

The third question asked where displaced people are going to end up going and whether neighboring communities are going to have a duty to accept them. Echeverria said NYC is an example of moving people from one part of the city to another. Byrne suggested looking at a recent article about this topic. In closing, Echeverria and Nolon discussed that it can be hard to deal with community wide problems through market mechanisms. It is also hard for politicians to say “this community isn’t viable,” but we can’t continue bearing the cost for failing to say this.


 

About this Panel:

The purpose of this panel is to discuss the legal and policy issues local governments will face as they respond to sea level rise.

Speakers

  • Professor Peter Byrne, Georgetown Law Center  — Coastal Communities Coping with Koontz: Using Exactions to Adapt to Sea-Level Rise and Storm Surges  
  • Professor John Echeverria, Vermont Law School — Eminent Domain and Coastal Retreat in the Era of Sea Level Rise
  • Professor John Nolon, Pace Law School – Sea Level Rise and Coastal Development: Seeking Solutions Above Regulation
  • Moderator: Ronald Rosenberg, Associate Dean for Academic Affairs, W&M Law School

Blog Post By: Toren Elsen


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