Resilience and Raisins: Partial Takings and Coastal Climate Change Adaptation
| Date | 01 February 2016 |
| Author |
2-2016 NEWS & ANALYSIS 46 ELR 10123
A R T I C L E S
Resilience and
Raisins: Partial
Takings and
Coastal Climate
Change
Adaptation
by Joshua Ulan Galperin and
Zaheer Hadi Tajani
Joshua Ulan Galperin is Clinical Director and Lecturer in
Law at Yale Law School and a Lecturer at the Yale School of
Forestry and Environmental Studies. Zaheer Hadi Tajani is
a student at the Yale School of Forestry and Environmental
Studies and Pace Law School. In May 2016, he will receive
a master’s degree from Yale and a J.D. from Pace.
Summary
e increased need for government-driven coastal
resilience projects will lead to a growing number of
claims for “partial takings” of coastal property. Much
attention has been paid to what actions constitute a
partial taking, but there is less clarity about how to
calculate just compensation for such takings, and
when compensation should be oset by the value of
benets conferred to the property owner. While the
U.S. Supreme Court has an analytically consistent
line of cases on compensation for partial takings, it
has repeatedly failed (most recently in Horne v. U.S.
) to articulate a clear rule.
e authors argue the government should compen-
sate property owners based on the free market value
of their remaining property, the calculation of which
should include all nonspeculative, calculable benets
of the taking.
Coastal climate change adaptation strategies are crit-
ical. e U.S. coasts, including the Gulf of Mexico
and the Great Lakes, are home to over 164 mil-
lion people, more than 50% of the U.S. population.1 ese
areas support 66 million jobs and $3.4 trillion in wages.2 In
the aggregate, coastal communities “generate 58% of the
national gross domestic product”3 and contribute $6.7 tril-
lion to the U.S. economy.4 Although this concentration of
people, jobs, wealth, and economic energy is threatened by
climate change, there is a feeling among some coastal resi-
dents that it is not climate change but government-driven
coastal resilience projects that truly threaten their property.
Constitutional protection of private property is not abso-
lute. e government may take private property to serve
the public good as long as the government also oers the
property owner “just compensation.” While the concept of
public good is capacious, determining just compensation is
often dicult and lacks the guidance of f ully articulated
judicial precedent. Court s will need to solve this problem
as governments more frequently acquire private coastal
property, often through eminent domain, to adapt to t he
threat of climate change.
is Article considers the issue of just compensation
for partial acquisitions of private property, particularly for
coastal resilience projects. What formula should be used in
determining a propert y owner’s compensation in a par tial
taking? W hat compensation is due the owner of the prop-
erty if, at the time of the taking, the government’s pro-
posed use of it is reasonably expected to confer a monetary
benet on him or her? How should the expectation of a
monetary benet to the private owner impact the compen-
sation calculation?
is Article argues that, while the U.S. Supreme Court
has an analytica lly consistent line of cases on compensa-
tion for partial takings, it has failed to articulate a clear
rule and that failure has resulted in signica nt confusion.
e Court’s recent decision in Horne
Agriculture5 was a missed opportunity to lay out the simple
rule proposed in this Article: e government should com-
pensate property owners based on t he fair market value of
their remaining property, the ca lculation of which should
1. Susanne C. Moser et al., ,
in C C I U S: T T N-
C A 579, 581 (U.S. Global Change Research Program
ed., May 2014), available at http://nca2014.globalchange.gov/system/
les_forc e/downloa ds/high/ NCA3_Clim ate_Chan ge_Impact s_in_the_
United%20States_HighRes.pdf.
2. Id.
3. Id.
4. Id.
5. No. 14-275, 2015 WL 2473384, 45 ELR 20120 (U.S. June 22, 2015).
Stanford Environmental Law Journal at 35 S. E. L.J. 3
(2016).
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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