The Legend of the Little Dutch Boy:  Striking the Right Balance in an Era of Rising Sea Levels

The Legend of the Little Dutch Boy:  Striking the Right Balance in an Era of Rising Sea Levels. 

 

The legend of the Little Dutch Boy tells the tale of a small boy who noticed a trickle of water coming through a dike.  He knew the small hole must be plugged to protect the community. Though frightened and cold during a long and lonely night, he kept his position until daylight came, and he could call for help. The little Dutch boy was considered a hero for his wisdom and tenacity.  If we don’t plan for rising sea levels, I suspect we’ll be remembered more like Pharaoh who tried to cross the parted Red Sea than the Little Dutch Boy.

 

I came across an engaging law review comment from a talented and promising law student at the University of Maine School of Law entitled, Rising to the Challenge:  Managed Retreat and the Taking Clause in Maine’s Climate Era, which discusses how to plan for the impacts of rising sea levels.

 

According to the author, there is a consensus among many in the scientific community that sea levels will rise between one and perhaps up to eight feet by the century’s end.  This inevitably will wreak havoc on infrastructure and property owners and cause (for now at least) incalculable economic damage.  Whatever you think about the timing and magnitude of climate change, state and local governments must plan for the future, and you can rest assured they will.

 

According to this comment, government policies should facilitate the “managed retreat” of people away from vulnerable coastal areas.  “Managed retreat” sounds awfully a lot like a battlefield maneuver by a woefully outmanned infantry or a sociological euphemism of some sort.  And euphemisms always scare me.

 

The question is whether local governments will temper their planning efforts by acknowledging the importance property rights have to our cultural and social values and the protections of those rights afforded by state and federal constitutions.

 

Using the parlance from this comment’s author, governments can facilitate “managed retreat” by (1) implementing “rebuilding restrictions” (which is again another euphemism, but which basically means the government isn’t going to allow a property owner to build on property in an area prone to rising sea levels) or (2) using the power of eminent domain to take property for a public purpose.

 

Now every self-respecting local planner is going to prefer option (1) because, according to the author, “Without having to pay just compensation under the Taking Clause according to fair market value of the property, the government is able to develop an alternative means of reallocating coastal communities that is more equitably attuned to the economic and social needs of vulnerable populations.”

 

To me, this quote sounds suspiciously like trying to figure out a way for government to get something for nothing.   The other problem is that, today, a parcel of property may not be in an area prone to sea rise.  It may be in the future though. And I can imagine that there will be considerable scientific and expert debate and litigation over the questions of how high seas will rise and when.  I am always concerned whenever government can circumvent protections afforded by takings clauses to accomplish something through land use restrictions which, in fairness and justice, should be accomplished by paying an owner compensation for the loss of constitutionally protected property interests.

 

The article does a lovely job of distinguishing between ad hoc partial takings under Penn Central and total takings under LucasLucas, as we all remember, dealt with the South Carolina Coastal Commission’s outright prohibition against building in a coastal protection zone area.  I also really appreciated seeing a reference in this comment to The Color of Law, Richard Rothstein’s seminal study about how governmental policies helped segregate American society.  See e.g., Richard Rothstein, The Color of Law: A Forgotten History of How our Government Segregated America, 13, 44, 65 (2017) (explaining that some of these racially discriminatory practices include the Federal Housing Administration only insuring mortgages for racially segregated neighborhoods, adoption of zoning rules that segregated families, and providing mortgages only to areas where there was physical separation between races).

 

This law review comment raises important questions, especially here in Florida where even now Miami Dade County is grappling with how to strike the right balance between protecting the public in areas prone to rising sea levels and protecting property rights.  Whatever combination of policies government use, we can’t just rely on the Little Dutch Boy anymore.

 

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