Thursday, August 28, 2008

Higgins on Legal Impact of Sea Level Rise

Megan E. Higgins (Roger Williams) has posted Sea Level Rise Impacts on Beaches and Coastal Property on SSRN.  Here's the abstract:

The causes of sea level rise; the impacts to beaches and coastal property; state responses to changes in sea level; the legal implications of existing sea level rise policies; outstanding legal issues; and potential solutions will be addressed.

Some coastal states have been proactive in anticipating sea level rise while others are now drafting policies that incorporate predicted changes. Litigation is more common as regulatory and resilient responses call into question Fifth Amendment takings claims. Unanswered legal questions remain as sea levels rise and climate continues to change; population of coastal communities grows; beaches are lost; and coastal properties infringe on public access as the shoreline shifts inland. Are rolling easements effective when homeowners are required to retreat based on setbacks determined by the mean high tide line? What is the effectiveness of erosion rate setbacks versus renourishment? Should there be a standard setback line (e.g., vegetation line)? What are the implications for property rights advocates? Who has the burden of proof? What constitutes a public nuisance regarding encroachment in dunes/beachfront area?

There are a number of potential solutions for addressing sea level rise: create setbacks; rolling easements; prevent armoring; financial inducements to move homes; encouraging elevation or employing new construction techniques; and purchasing federal flood and wind insurance. However, when property lines along the coast are determined by the ocean, something that is far beyond the control of the respective state's courts, the future of sea level rise litigation remains uncertain.

Ben Barros

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