Climate Exactions

Date01 August 2017
Author
47 ELR 10666 ENVIRONMENTAL LAW REPORTER 8-2017
I. Introduction
Monetary exactions are a tool that ca n mitigate the envi-
ronmental or other public harms of land development.
Local governments commonly impose fees, or monetar y
exactions, on new development to oset public costs such
development will impose, such as exacerbated trac con-
gestion. is Essay a rgues that monetar y fees oer signi-
cant potential as a tool to help local governments mana ge
land development’s contribution to climate change. Such
“climate exactions” can put a price on the carbon emissions
attributable to new development, such as increased vehicle
miles travelled by new residents of a car-dependent subdivi-
sion. ey can also mitigate development that reduces the
jurisdiction’s natural resiliency to climate change. While
no jurisdiction has yet imposed exactions to address such
climate problems, exactions are commonly used to address
other negative externalities and public service needs and
provide a promising legal template for climate concerns.
II. Why “Climate Exactions”?
Land development can exacerbate climate cha nge a nd its
consequences. New development can increase a jurisdic-
tion’s greenhouse gas (“GHG”) emissions in many ways,
such as by locating new residences, workplaces, or retail in
areas not served by public transit, leading to increased driv-
ing. Development also aects the land’s ability to respond
to the impacts of climate change. For example, structures
like sea walls built to protect development from sea-level
rise can damage beaches and wetla nds, encourage even
greater development behind the wall (increasing risks of
catastrophic failure), and aggravate ooding and erosion of
neighboring properties.1 If we are to successfully address
land development’s role in climate change, we wi ll have to
address both its contributions to emissions and its eect on
climate resilience.
1. J G, A T K: S-L R  C
L U 6 (2011).
Land development is regu lated primarily at the loca l
government level. In recent years, there has been substan-
tial regulatory action at the federal and state levels to reduce
emissions from large stationary sources2 and vehicles.3
Although continuation of such initiatives at the federa l
level now appears doubtful, federal eorts will have little
impact on the land use patterns that drive transportation
decisions. Rather, local planning decisions inuence these
patterns: t hey inuence where and how people travel. In
addition to cleaner fuels and more ecient vehicles, reduc-
ing emissions from transportation requires reducing miles
traveled by fossil fuel vehicles, which is heavily inuenced
by land development patterns and the availability of tran-
sit. Additionally, while stationary sources like power plants
are already part of an existing national regulatory regime
for air emissions and other pollutants, it is much harder to
regulate emissions from many small, distributed sources of
emissions like buildings and transportation, at the national
(or even state) level.
Local governments, on the other hand, have signi-
cant experience employing land us e tools to miti gate
environmenta l concerns.4 Althoug h local governments
may want to take vigorous regulator y action to reduce
emissions, aggre ssive prohibitions on development may
expose them to liability for regu latory taking (and may
not be desira ble for other policy reasons like e conomic
development goals).5 e costs of litigat ing regulatory
taki ngs claims —let alone paying large compensation
awards—are daunting, and lawyer s for property ow ners
are well aware of t his vulnerability.
One promising approach that has not yet been applied
to carbon emissions or adaptation is the use of monetary
2. See, e.g., Clean Power Plan: What EPA Is Doing, U.S. E. P. A-
 (July 17, 2015), http://www2.epa.gov/carbon-pollution-standards/
what-epa-doing.
3. See, e.g., Cars and Light Trucks: Vehicle Standards and Regulations, U.S. E-
. P. A (Oct. 23, 2015), http://www.epa.gov/otaq/standards.
htm.
4. See generally J R. N, P  E T
L U L: S G (2014).
5. Takings problems arising from regulatory eorts to adapt to climate change
are discussed in J. Peter Byrne, e Cathedral Engulfed: Sea-Level Rise, Prop-
erty Rights, and Time, 73 L. L. R. 69 (2012). See also James G. Titus,
Rising Seas, Coastal Erosion, and the Takings Clause: How to Save Wetlands
and Beaches Without Hurting Property Owners, 57 M. L. R. 1279 (1998).
A R T I C L E
Climate Exactions
by J. Peter Byrne and Kathryn A. Zyla
J. Peter Byrne is the J. Hampton Baumgartner Chair in Real Property Law at Georgetown University Law Center and
Faculty Director at Georgetown Climate Center. Kathryn A. Zyla is the Deputy Director at Georgetown Climate Center.
is Article is adapted from Peter J. Byrne and Kathryn Zyla,
Climate Exactions, 75 M. L. R. 758 (2016), and is reprinted
with permission.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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