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
SUMMARY

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... (see full summary)

 
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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. & POLY 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.

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