Implications of takings law on innovative planning for sea-level rise in the Gulf of Mexico

Objectives

The co-PIs state the following objectives of the project:

1. To identify and analyze the nuisance and takings law challenges that local planners and regulators face in implementing adaptive management and planning techniques to counter sea-level rise and other hazards associated with climate change;
2. To develop novel planning and mitigation tools addressing takings law concerns; 
3. To develop a curriculum for extension and outreach programs, including legal and scientific information, to assist policy makers in addressing the risks of sea-level rise; and
4. To implement the outreach curriculum through:
   1. Seminar presentations by co-PIs at a minimum of four state and national-level conferences;
   2. Specialist lectures by certain co-PIs in conjunction with the American Planning Association and local Sea Grant Extension agents;
   3. Development of new media that will provide streaming video of presentations and other web-based media products for broad public dissemination.
   4. Seeking collaboration with the Gulf of Mexico Alliance to disseminate information aimed at enhancing the ecological and economic health of the Gulf Region by focusing on the Alliance’s “coastal community resiliency” priority issue;
   5. Creation of a website hosted by the Mississippi-Alabama Sea Grant Legal Program that will house project products and serve as a planning resource for local governments; and
   6. Development of working relationships in GOM states between the co-PIs, their respective institutions, and associations representing local government attorneys and planners.

Methodology

In coordination with an assembled Planning Advisory Council of nationwide acclaim, this project will employ traditional methods of legal research and writing, including the review of statutory, judicial, regulatory and other legal materials in the areas of eminent domain, regulatory takings law, environmental law, and land use planning law to develop innovative policies for adaptation to sea-level rise in the GOM. 

Rationale

Even assuming the conservative estimates of sea-level rise, the phenomenon undoubtedly will result in significant threats to the resiliency and long-term sustainability of coastal communities.  As the seas continue to rise, the GOM is undergoing tremendous population growth, particularly in coastal areas. Thus, sea-level rise presents alarming potential for causing physical and economic harm to millions of people around the GOM, yet no Gulf States have implementable, meaningful policies or regulations directly addressing sea-level rise.

Regulatory and planning officials have expressed a feeling of constraint in developing policies to address sea-level rise due to the fear of compensable “takings” claims under Constitutional or statutory law. This project will specifically seek to address this fear through (1) legal analysis of existing takings jurisprudence and laws, (2) development of legal arguments that consider the imperative of sea-level rise, and (3) identification and development of specific, innovative land use policies designed to withstand takings claims. In Phase I of the project, the co-PIs will provide a fresh, comprehensive examination of takings law in Florida, Alabama, Mississippi, Louisiana, and Texas to provide a foundation for addressing the source of regulatory hesitancy in Phase II and developing innovative land use planning policies for adaptation to the GOM’s changing landscape in both the short and long term that are resistant to takings claims in Phase III.

Specifically, in Phase III, the co-PIs will develop innovative legal arguments and land use planning tools through an analysis of a variety of specific management and planning challenges.  These challenges include, but are not necessarily limited to, the following: (i) whether shorefront armoring can be declared unreasonable per se, which would allow for implementation of wide-ranging retreat policies, and whether the continued permitting of such armoring could subject the permitting agency to takings liability for the erosion caused by the armoring and the interference with natural sediment transport; (ii) whether the concept of a rolling easement, as set forth under Texas law, can serve as a model managed retreat approach Gulf-wide; (iii) whether the government can be liable for not requiring land use restrictions to mitigate coastal hazards; (iv) whether negative and rolling easements could be imposed as permit conditions without giving rise to successful takings claims; (v) whether coastal construction can be characterized as a “highly regulated industry,” thereby altering the standard of review of takings claims; and (vi) whether required notices of coastal dynamics, erosion, and sea-level rise signed by coastal property purchasers can affect traditional takings analysis.

Local government regulators, planners, and attorneys will benefit from the legal analyses and recommendations developed, as well as the innovative land use planning tools discussed herein.  To assure these benefits, the co-PIs have heeded the suggestions of the pre-proposal review panel by assembling the above-referenced Planning Advisory Council of specialized coastal planners, environmental and land use regulators, and sea level rise experts, who will provide substantive project input and periodically review the co-PIs work product.