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

• Author: J. Peter Byrne
• Position: Professor of Law, Georgetown University Law Center. The author wishes to thank Daniel Ashby for helpful research assistance. Profound thanks also to Jessica Grannis for mentoring and for helpful comments on an earlier draft. All errors are the author's
• Pages: 69-118

The Cathedral Engulfed: Sea-Level Rise, Property

Rights, and Time

J. Peter Byrne∗

Global climate change has and will lead to substantial rises in

global sea levels. The now inevitable rise in sea levels poses new

and difficult challenges to property rights and land-use regulation.

Inundation and storm surges will physically destroy private and

public property at great loss. But perhaps more fundamentally, the

threats of such losses and the predictable efforts to contain them

will call for new approaches to land-use regulation and strain

traditional understandings of property rights in land. Neither the

common law nor traditional notions of zoning contain legal

resources adequate to cope with the economic, environmental, and

human risks that sea-level rise will generate. New forms of

regulation and shifts in the content of common law rules will

generate novel claims of regulatory takings, confronting courts

with puzzling questions of fundamental rights under unprecedented

climatic conditions.

This Article seeks to clarify the kinds of regulatory takings

questions that sea-level rise will generate, building on the

emerging legal literature concerning adaptation to climate change.

The Article unequivocally accepts the strong scientific consensus

that global climate change is caused by human activity emitting

greenhouse gases.1 Prompt and far-reaching legal and cultural

Copyright 2012, by J. PETER BYRNE.

∗ Professor of Law, Georgetown University Law Center. The author

wishes to thank Daniel Ashby for helpful re search assistance. P rofound thanks

also to Jessica Grannis for mentoring and for helpful comments on an earlier

draft. All errors are the author’s.

The title of this Article invokes the seminal article on the nature of property

rights, Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules,

and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972).

The point only is to suggest how sea-level rise, and changes in the natural world

more generally, may upend some settled and static notions about the “cathedral”

of property law, something Calabresi and Melamed probably would not disagree

with. The title also borrows from Claude Debussy’s innovative prelude for

piano, La cathédrale engloutie.

1. See, e.g., Richard A. Muller, The Conversion of a Climate-Change Skeptic,

N.Y. TIMES, July 30, 2012, at A19, available at http://www.nytimes.com/2012/07/

30/opinion/the-conversion-of-a-climate-change-skeptic.html?pagewanted=all&_r=0;

William D. Nordhaus, Why the Global Warming Skeptics Are Wrong, N.Y. REV. OF

BOOKS (Mar. 22, 2012), http://www.nybooks.com/articles/archives/2012/mar/22/

why-global-warming-skeptics-are-wrong.

70 LOUISIANA LAW REVIEW [Vol. 73

reforms are needed to reduce global emissions.2 However,

questions of legal adaptation to global warming and other

observable climate phenomena do not require adherence to any

explanation for climate change, so long as the reader accepts the

observable fact that seas are rising. Adaptation measures do not

seek to mitigate or stop climate change but rather seek to change

legal regimes to cope with its physical consequences.3 Failure to

adapt will put at hazard life, property, and vital ecological services.

Even jurisdictions politically deadlocked over proposals to reduce

greenhouse gases may accept the necessity for legal change to

adapt to climate change. Of course, from the perspective of those

who accept the scientific consensus about anthropogenic climate

change,4 political paralysis over mitigation increases the urgency

for adaptation measures. Because of the greenhouse gases’

durability in the atmosphere, serious warming will occur for many

years even if humans presently find the capacity to dramatically

reduce emissions.

The consequences that climate change has for natural resources

upon which humans depend are impressive and varied. Increased

heat, habitat modification, species extinctions, drought, extreme

storms, and flooding pose large public health and resource

management challenges, some of which have received extensive

analysis in the legal literature.5 Given the ecological importance of

coastal areas and clustering of development within them, sea-level

rise presents problems of great practical concern and compelling

2. See, e.g., Richard J. Lazarus, Super Wicked Problems and Climate

Change: Restraining the Present to Liberate the Future, 94 CORNELL L. REV.

1153 (2009).

3. On the emerging law of adaptation, see THE LAW OF ADAPTAT ION TO

CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS (Michael B. Gerrard &

Katrina Fischer Kuh eds., 2012). For a comprehensive review of adaptation

initiatives in the United States, see GEORGETOWN CLIMATE CTR., ADAPTATION

CLEARINGHOUS E, http://www.georgetownclimate.org/adaptation/clearinghouse

(last visited Sept. 28, 2012).

4. Anthropogenic means that human activity is a significant cause of climate

change.

5. See, e,g., J.B. Ruhl, Climate Change and the Endangered Species Act:

Building Bridges to the No-Analog Future, 88 B.U. L. REV. 1 (2008); Robin

Kundis Craig, Adapting Water Law to Public Necessity: Reframing Climate

Change Adaptation as Emergency Response and Preparedness, 11 VT. J.

ENVTL. L. 709, 724 (2010) (noting the high costs that will result from a water

shortage due to climate change); Jessica Grannis, Julia Wyman, Meagan Singer,

Jena Shoaf & Colin Lynch, Coastal Management in the Face of Rising Seas:

Legal Strategies for Connecticut, 5 SEA GRANT L. & POL’Y J. 59 (2012)

(detailing local and state policy approaches to mitigate the impacts of sea-level

rise); Victor B. Flatt, Adapting Laws for a Changing World: A Systemic

Approach to Climate Change Adaptation, 64 FLA. L. REV. 269 (2012).

2012] THE CATHEDRAL ENGULFED 71

theoretical depth. Some islands, such as Maryland’s Smith Island

in the Chesapeake Bay, which has been settled since 1686, will

surely disappear.6 As has often been remarked, property and

environmental conflicts are most acute where land meets the sea.7

Not only do coastal areas present acute conflicts about balancing

development and environmental protection, but the property rules

and regulatory regimes regarding water and land differ markedly

even though these natural elements are constantly interacting.8

Judicial reports and law reviews are strewn with analyses of bitter

disputes between collective action and individual interests in

coastal regions.9 Sea-level rise adds a vigorous catalyst to this

already bubbling brew.

This Article focuses on regulatory takings law for its

consideration of adaptation to sea-level rise. It does so even though

regulatory initiatives for adapting to sea-level rise are in their

infancy. Thus, the Article addresses general, proposed approaches

to land-use regulation under discussion, rather than concrete

regulatory initiatives under active conflict.10 This approach may

seem to put the cart before the horse; however, discussion of

regulatory takings problems posed by regulatory adaptation to sea-

level rise is already occurring and is an appropriate topic of this

6. See Ben Giles, Scientists Warn of Smith Island’s Demise, Residents Are

Skeptical, THE BAY BEAT (Apr. 20, 2010), http://chesapeakebay.umd.edu/

article/scientists-warn-smith-islands-demise-residents-are-skeptical.

7. See, e.g., Richard Lazarus, Changing Conceptions of Property and

Sovereignty in Natural Resources Law: Questioning the Public Trust Doctrine,

71 IOWA L. REV. 631, 647 (1986) (noting the public trust doctrine’s historic

focus on navigable waters).

8. Residents of low-lying, economically disadvantaged countries are likely

to suffer far more gr ievous harm than will residents of the Uni ted States.

Although legal adaptation measures in such areas are beyond the domestic focus

of this Article, vulnerable residents of places like Bangladesh deserve the

world’s attention.

9. See generally Whaler’s Vill. Club v. Cal. Coastal Comm’n, 220 Cal.

Rptr. 2 (Cal. Ct. App. 1985) (concerning the right to protect one’s property and

the state’s right to limit coastal development); McQueen v. S.C. Coastal

Council, 580 S.E.2d 116 (S.C. 2003) (concerning a property owner’s right to

protect his land being overridden by the public trust doctrine); Niki L. Pace,

Wetlands or Seawalls? Adapting Shoreline Regulations to Sea Level Rise and

Wetland Preservation in the Gulf of Mexico, 26 J. LAND USE & ENVTL. L. 327

(2011) (examining the policy options available in the face of sea-level rise).

10. For greater discussion of land-use regulatory approaches, see J. Peter

Byrne & Jessica Grannis, Coastal Retreat Measures, in THE LAW OF ADAPTATION

TO CLIMATE CHANGE, supra note 3, at 267–306; JESSICA GRANNIS, ADAPTATION

TOOL KIT: SEA-LEVEL RISE AND COASTAL LAND USE (2011), http://www.george

townclimate.org/resources/adaptation-tool-kit-sea-level-rise-and-coastal-land-use.