Posted: May 19th, 2024

The Legal Implications of Sea Level Rise for Coastal Infrastructure Projects: Balancing Development Needs with Adaptation Strategies

The Legal Implications of Sea Level Rise for Coastal Infrastructure Projects: Balancing Development Needs with Adaptation Strategies

As global temperatures continue to rise due to anthropogenic climate change, one of the most pressing threats is accelerating sea level rise (SLR). Current projections indicate that global mean sea levels could rise by 0.3 to 1.1 meters by 2100, with some regions experiencing even higher increases (IPCC, 2019). SLR poses significant risks to coastal communities and infrastructure, including inundation, increased flooding, saltwater intrusion into aquifers and agricultural land, and heightened exposure to storms and erosion (Oppenheimer et al., 2019). Coastal areas are home to a large and growing proportion of the global population as well as critical infrastructure such as ports, roads, power plants, and water treatment facilities.

As the impacts of SLR become more apparent, coastal jurisdictions are increasingly grappling with how to adapt existing infrastructure and plan future development in a legally and financially sustainable manner (Byrne, 2018). This involves complex tradeoffs between risk mitigation, development pressures, property rights, and environmental protection (Jagers et al., 2020). This essay examines some of the key legal considerations for coastal infrastructure adaptation to SLR, focusing on the need to balance development imperatives with long-term resilience. It argues that proactive planning guided by forward-looking laws and policies is essential to avoid locking in maladaptation and intergenerational inequities.

Property Rights and Regulatory Takings
A contentious legal issues surrounding SLR adaptation is the potential conflict between private property rights and land use regulations aimed at restricting development in vulnerable areas. In the United States, the Takings Clause of the Fifth Amendment prohibits the government from taking private property for public use without just compensation (Ruhl, 2019). Historically, this provision has constrained the ability of state and local governments to limit development through zoning, setbacks, and other regulations (Miller et al., 2018).

However, the nature of property rights in the coastal zone is complicated by the public trust doctrine, which holds that the state has a duty to protect tidal lands and waters for public use (Craig, 2019). As sea levels rise, the intersection between private and public property will shift, potentially leading to the creation of new public trust lands (Herzog & Hecht, 2020). This dynamic boundary could strengthen the legal authority of governments to regulate development in the coastal zone without triggering regulatory takings claims.

Courts have been wrestling with how to apply takings jurisprudence to SLR adaptation measures. A notable recent case is Murphy v. Town of Fairfield, in which the Connecticut Supreme Court upheld a municipal regulation prohibiting shoreline armoring on a beach that had been converted to public trust land due to SLR (Owley, 2020). The court found that the regulation did not constitute a taking because it was a reasonable exercise of the town’s duty to protect the public trust. This decision suggests that as SLR reshapes the coast, private property rights may need to yield to public interests in certain contexts.

Nonetheless, the specter of takings litigation could still have a chilling effect on coastal adaptation efforts. Governments may be hesitant to enact strict regulations or deny development permits for fear of expensive lawsuits (Herzog & Hecht, 2020). One way to manage this risk is through the use of rolling easements, which allow development with the understanding that it may need to be removed or relocated in the future as the shoreline migrates inland (Byrne, 2018). Rolling easements can be coupled with other tools such as transfer of development rights programs to provide compensation to affected landowners (Miller et al., 2018).

Resilient Infrastructure Planning and Design
More key legal consideration for coastal adaptation is ensuring that infrastructure projects are planned and designed with long-term SLR projections in mind. Traditionally, infrastructure has been built based on historical climate data, which is no longer a reliable guide in an era of rapid change (Orff & Schwarting, 2018). Failing to account for SLR in project planning could lead to premature obsolescence, wasted investments, and increased risk exposure (Jagers et al., 2020).

To address this challenge, some jurisdictions are developing new standards and guidelines for resilient infrastructure design. For example, California has adopted a “no regrets” approach that requires state agencies to consider the H++ SLR scenario (10 feet of SLR by 2100) in all decision-making (Herzog & Hecht, 2020). Similarly, New York City’s Climate Resiliency Design Guidelines provide a framework for incorporating forward-looking climate data into capital projects (NYC Mayor’s Office of Resiliency, 2020).

However, translating these high-level principles into legally enforceable requirements is not always straightforward. Conflicts can arise between resilience objectives and other legal mandates related to environmental review, historic preservation, and accessibility (Rozum & Manderino, 2019). Agencies may struggle with how to justify the additional costs and limitations associated with designing for an uncertain future (Orff & Schwarting, 2018). Clearer statutory guidance and funding mechanisms are needed to support the mainstreaming of resilience into infrastructure planning.

Managed Retreat and Social Equity
In some cases, the most prudent response to SLR may be managed retreat – the purposeful relocation of people and infrastructure away from vulnerable areas (Siders, 2019). However, retreat is often politically and legally fraught, raising thorny questions about who should pay for relocation costs, how to compensate displaced residents and businesses, and where to rebuild (Jagers et al., 2020). Retreat can also exacerbate existing socioeconomic inequities if not carefully planned with community input and support.

Historically disadvantaged populations are often more exposed to coastal hazards due to discriminatory land use practices and lack of resources to adapt (Hardy et al., 2018). These communities may face pressure to relocate before wealthier areas, leading to concerns about climate gentrification (Keenan et al., 2018). Fair and equitable managed retreat will require proactive engagement with affected communities, culturally appropriate relocation assistance, and measures to prevent the concentration of vulnerable groups in high-risk areas (Siders et al., 2019).

Some jurisdictions are exploring the use of pre-disaster buyout programs to facilitate managed retreat. For example, New Jersey’s Blue Acres program acquires flood-prone properties from willing sellers and converts the land to open space (NJ DEP, n.d.). However, participation in such programs is often low due to insufficient compensation, attachment to place, and mistrust of government (Binder & Greer, 2018). More research is needed on how to design legally and ethically sound managed retreat strategies that respect community autonomy and promote social resilience.

Conclusion
The legal landscape for coastal infrastructure adaptation to SLR is still evolving as governments, courts, and communities grapple with unprecedented challenges. Balancing property rights, public interests, and equitable outcomes will require difficult tradeoffs and innovative solutions. Proactive planning guided by forward-looking laws and policies is critical to avoid locking in maladaptation and intergenerational inequities. By mainstreaming resilience into infrastructure design, exploring managed retreat where appropriate, and prioritizing the needs of vulnerable populations, coastal jurisdictions can build a more just and sustainable future in the face of rising seas.

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