11/03/2020 - Legal Analysis - Sea Level Rise - Student Work

Abandoning structures to rising sea levels, what are the legal issues and solutions?

by Jake Hummer, JD 2022

Shifting property lines and flooded structures are not new problems, but with climate change increasing their occurrence, we need new legal tools and better policy to address them. Land loss can happen slowly by erosion or accretion, or it can happen quickly by avulsion.[1] Whether property ownership shifts as a result depends on state property law, building permit terms, and coastal development regulations. In general, gradual changes cause property lines to shift while rapid changes do not. Sea level rise can cause both—a gradual rise can slowly inundate buildings, and can instead intensify storms and cause acute coastal flooding. In either case, it’s a growing threat to coastal property and has already forced states to adapt their policies to deal with increasing inundation of coastal structures.

When a coastal property is inundated and structures can no longer be used, there’s no uniform answer as to who bears the liability to remove it or pay damages. Real estate can’t just be abandoned—it must pass from one owner to another.[2] Some local governments’ coastal permits require owners to remove structures when the sea rises to a certain point. Absent such requirements some local governments’ budgets may be insufficient to pay for the costs associated with inundation.

The potentially high economic and environmental costs of damaged structures highlight the importance of understanding common law, statutory, and regulatory constraints on policy options for adapting to climate change. In this post, I discuss some of the property issues presented by rising sea levels and conclude that federal, state, and local governments all need to be more proactive in their role to deal with increasing numbers of submerged coastal structures.

Property Lines Shift as Sea Levels Rise, Potentially Resulting in “Abandoned” Structures

Most coastal land is part of the public trust, meaning that it’s held by a local or state government for use by the general public. Many private properties go along the coastline, and the line dividing the private property from the public trust is based on the sea level. States vary in how they define the public trust line—mean high tide, mean low tide, or vegetation line—all of which can change due to sea level rise.[3]

When land is “submerged” it generally becomes part of the public trust, meaning that it is owned by the local or state government for public use.[4] State and local governments can get around this by having specific policies that retain private owners’ possession of submerged property.[5] However, building codes would still prevent the buildings from being inhabited once they are inundated.[6] Another important tool for local governments is the rolling easement which moves the property-public trust line as the sea level moves.[7] Imposing a new rolling easement on a property not already subject to one raises takings concerns, but where the rolling easement is already in place the property would transfer from private to public ownership as the sea level rises.[8]

Even with rolling easement and permits containing removal requirements, structures will remain standing in newly submerged land if the state cannot compel private property owners to remove them. As properties are submerged and their ownership shifts, questions of responsibility arise and the liability for the structure potentially shifts to the state as well.

Dealing with the Growing Costs of Abandoned Coastal Structures

Existing Statutory and Regulatory Tools 

Buildings inundated by rising sea levels will remain until or unless there’s a duty to remove them.[9] There is no federal law that would always require their removal; although, several federal laws may come onto play when structures are abandoned due to sea level rise. For instance, the Clean Water Act makes it unlawful to discharge any pollutant from a point source into navigable waters.[10] Relatedly, the Rivers and Harbors Act prohibits any activity that obstructs “navigable waters” without a permit.[11]

Structures that are “uncontrolled or abandoned” due to sea level rise may also fall within the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) as “hazardous-waste sites . . . accidents, spills, and other emergency releases of pollutants and contaminants into the environment.”[12] The original owner of the structure may continue to be liable even after property ownership transfers. The CERCLA, for example, gives the EPA the “power to seek out those parties responsible for any release and assure their cooperation in the cleanup.”[13]

On the state level, all states (with the exception of Alaska) work jointly with the federal government under the Coastal Zone Management Act to provide special protection for coastal areas.[14] This generally takes the form of permits that limit how a property owner may develop their property. For instance, some newer coastal building permits include provisions that require the owner to remove the structure when the sea level rises to a certain point.[15] Rolling easements and permits are also used to prevent private owners from fortifying the coastline, which would cause “coastal squeeze” and destroy coastal habitats.[16] Such permits may also include a financial assurance provision, which is another important tool to regulate coastal property development by requiring private property owners to prove that they can cover the costs of potential damage.

All levels of government have employed financial assurance requirements in some form. This is most common with powerplants, mining operations, and other commercial operations,[17] and it “ensure[s] that entities liable . . . for adverse environmental impacts bear the cost of addressing those liabilities.”[18] With these commercial operations, the potential long-term environmental harms and costs are speculative and uncertain.[19] Financial assurance often requires the involvement of a third party like an insurance company or other entity to provide letters of credit, surety bonds, and trust funds.[20]

An example of this type of financial assurance is the New Jersey Department of Environmental Protection’s regulation requiring builders of new structures in riparian zones to mitigate disturbance of vegetation and to provide financial assurance to compensate for ecological loss.[21] Riparian zones explicitly do not include ocean coastlines;[22] nonetheless, the New Jersey Coastal Area Facility Review Act “requires that any proposed development within the State’s ‘coastal area’ that meets the initial construction and development thresholds . . . must obtain a permit from DEP before the commencement of that construction unless otherwise expressly exempted.”[23] This act has been challenged as a taking but was upheld almost entirely by the New Jersey appellate court.[24]

Financial assurance requirements could help states protect themselves from being left with the full costs of cleanup if coastal developers and building owners lose their structures to the seas. However, such protection may not cover local governments’ financial obligations or loss of property tax.[25] This reality heightens the importance of thoughtful planning when considering and approving new development, but does not solve the problem of what to do with already built structures.

Persistent Challenges

Rolling easements and removal permits while helpful, also present challenges for addressing the problem of already built structures and takings.[26] The Fifth Amendment to the U.S. Constitution mandates that the federal government (and states via the Fourteenth Amendment) shall not “take” private property for a public use without just compensation.[27] Many states go beyond the Takings Clause and provide additional protections for private property owners.[28] New rolling easement or removal permits, or other regulations that limit coastal property use, are evaluated case-by-case under the Penn. Central regulatory takings balancing test.[29] In California, permits requiring the removal of structures when the sea reaches a certain level are not considered exactions since there is 1) an “essential nexus” between removing the property and protecting the coast and 2) a “rough proportionality” to the potential public harm.[30]

The tools described above limit what developers can do in a coastal zone and financial assurance requirements generally apply to new activity; however, they do not solve the problem of existing structures built before the requirements were in place. Also, statutes like CERCLA and the Clean Water Act have limited applicability as they apply only to certain types of waste sites that likely would not include many of the coastal residential properties most at risk.[31]

Lastly, the extent of “damages” from abandoned structures is nebulous. The cost depends on the nature of the specific property and structure, and comprises some combination of the cost to remove the building, the cost of the pollution caused by an abandoned structure falling apart into the sea, and the cost of the structure frustrating the natural rise of coastline vegetation.

Where Does This Leave Us?

There is no single answer to what will happen to structures “abandoned” due to rising sea levels because of the decentralized nature of local government policy regulating coastal buildings. Sometimes the property owner pays, sometimes the government pays, sometimes it is unclear.[32] Without federal intervention to provide a uniform solution, I believe that local and state governments’ strategies will be insufficient to deal with the enormous cost. Permits and easements are not enough—new legal and economic structures are likely necessary to address the potential liabilities of existing structures in harm’s way.

 

[1] For more on how state property law treats avulsion, see the EELP white paper “Troubled Waters: Coastal Avulsion, A State Survey” by Ari Sillman (JD 2021).

[2] Eduardo M. Peñalver, “The Illusory Right to Abandon,” Paper 209 Cornell L. Faculty Pub, 200, (2010) (citing Restatement (Second) of Prop.: Landlord & Tenant § 12.1 cmt. i (1977)).

[3] Margaret Peloso, Chapter 4: Key Legal Principles to Understand Sea Level Rise Adaption in Adapting to Rising Sea Levels: Legal Challenges and Opportunities, Carolina Academic Press, 95–96 (2019).

[4] Id. at 94 (citing Shively v. Bowlby, 152 U.S. 1 (1894)).

[5] See, e.g. Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452–53 (1892) (noting that the State may grant parcels of submerged land to private parties to build wharves and harbors for the public interest of fishing and commerce); cf. Peloso, supra note 3, at 94–95 (citing United State v. Rio Grande Dam & Irrigation Co. 174 U.S. 690, 703 (1899)) (noting that the commerce power of federal government can preempt state law regarding public trust of navigational waters).

[6] Peloso, supra note 3, at 94.

[7] Peloso, supra note 3, at 104 (citing James G. Titus, Rising Seas, Coastal Erosion, and The Takings Clause: How to Save Wetlands and Beaches Without Hurting Coastal Property Owners, 57 Md. L. Rev. 1279 (1998)).

[8] Id.

[9] Peñalver, supra note 2, at 210–11; Cristofani v. Bd. of Educ., 632 A.2d 447, 450 (Md. Ct. Spec. App. 1993); Waldrop v. Whittington, 57 So.2d 298, 300 (Miss. 1952).

[10] 33 U.S.C. §1251 et seq. (1972); see alsoManaged Retreat Toolkit – Overview of the Legal Framework,” Georgetown Law Climate Center.

[11] 33 U.S.C. §§ 403 et seq. (1899).

[12]Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund),” Laws and Regulations on EPA.gov (citing 42 U.S.C. §9601 et seq. (1980)).

[13] Id.

[14] 16 U.S.C. §§ 1451 et seq. (1972).

[15] Peloso, supra note 3, at 104 (citing Robert J. Nocholls, et al., Chapter 6: Coastal Systems and Law-Lying Areas, in Climate Change 2007 315, 343 (2007)).

[16] Id.

[17] See, e.g., 40 CFR 264.147 (requiring financial assurance for accidents at surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit); 46 FR 2802 (requiring financial assurance for the closure of hazardous waste treatment, storage, and disposal facilities).

[18] Edna Sussman, et al., Climate Change Adaptation: Fostering Progress Through Law and Regulation, 18 N.Y.U. Envtl. L.J. 55, 119–20 (2010) (emphasis added); see, e.g., Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9608(b) (2006); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6924(a)(6) (2006); see also Gov’t Accountability Office, Environmental Liabilities: EPA Should Do More to Ensure that Liable Parties Meet Their Cleanup Obligations 3-6 (2005) (discussing bankruptcy statistics for liable parties and the role of the EPA in ensuring that financially distressed liable parties are held accountable).

[19] Sussman, supra note 18, at 121.

[20] Id.

[21] Id.

[22] 48 N.J.R. 1067(a) § 7:13-2.3(c)(1)(i).

[23] In re Protest of Coastal Permit Program Rules, 807 A.2d 198, 208 (N.J. Super. Ct. App. Div. 2002).

[24] See id. at 246–47.

[25] See Georgetown Climate Center, supra note 2, at “Infrastructure” and “Economic: Funding.”

[26] Takings caused by managed retreat policy is a large issue. So long as the regulation does not bring the property value to zero, the government can avoid Lucas per-se takings. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302 (2002). Also, a regulation that abates a nuisance cannot be a taking, since the owner has no property right to engage in a nuisance. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1028 (1992) (“[w]here a regulation forbids a use of a property that would have already been prohibited by ‘background principles of the state’s law of property and nuisance’ the government is not required to compensate a private property owner based on the effects of that regulation on the property”).

[27] U.S. Const. amend. V.; U.S. Const. amend. XIV; see also Georgetown Law Climate Center, supra note 10, at “Step Three: Constitutional Compliance.”

[28] John D. Echeverria & Thekla Hansen-Young, Symposium: Litigating Takings and Other Legal Challenges to Land Use and Environmental Regulation, 28 Stan. Envtl. L.J. 439, 443 (2009) (describing extra protections for private property afforded by Florida, Oregon, Louisiana, Mississippi, Texas, and Arizona).

[29] Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) (applying a 3-factor test to regulatory takings). The factors are (1) the character of the government’s action, perhaps including the weight of the public purpose advanced; (2) the extent to which the regulation has damaged the property’s economic value; and (3) the effect of the regulation on the reasonable investment-backed expectations of the owner.

[30] Lindstrom v. Cal. Coastal Comm’n, No. D074132, at 2 (Cal. Ct. App. 2019). The essential nexus and rough proportionality test was established in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (“Nollan”) and Dolan v. City of Tigard, 512 U.S. 374 (1994) (“Dolan”).

[31] 33 U.S.C. §1251 et seq. (1972); 33 U.S.C. § 403 et seq. (1899); see alsoManaged Retreat Toolkit – Overview of the Legal Framework,” Georgetown Law Climate Center.

[32] Real estate legally cannot be abandoned, generally speaking. See supra note 2 and accompanying text.