CHAPTER 4 CHOOSING THE APPROACH: IS THERE LEGAL AUTHORITY?

Rolling easements are government regulations or transfers of property rights that decrease or eliminate the continued use and enjoyment of coastal property as sea level rises. Designing a rolling easement policy requires deciding:

The specific rights that will be altered, and
The legal approach used to alter those rights.

Before specifying the rolling easement in detail, a threshold question is whether there is legal authority for the preferred legal approach. Or more generally: for which options is there currently legal authority? Such authority may be constrained for a number of reasons:

The common law of property limits the ability of private parties to voluntarily transfer some property rights;
State laws have abolished or limited options that the common law allowed;
State law limits the power of local governments; and
The federal constitution prevents property from being taken for a public purpose without just compensation; some state constitutions do so as well.[326]

In this chapter,[327] we summarize some of the issues that must be examined to determine whether there is legal authority for a particular approach. Because property law and the authority of regulatory agencies vary by state—and sometimes even within a state—all we can do here is summarize some of the issues that must be investigated before proceeding, with a few examples for clarification. Although federal constitutional rights are uniform throughout the nation, whether a rolling easement takes property (requiring compensation) would depend on whether title to coastal property includes a right to hold back the sea, which is a matter of state law.

[326] Some states also have statutes that limit the economic burden of a regulation on private property. See, e.g., John D. Echeverria & Thekla Hansen-Young, The Track Record on Takings Legislation: Lessons from Democracy's Laboratories, 28 Stan. Envtl. L. J. 439 (2009) (discussing property rights legislation in Florida and Oregon).

[327] Conversations with Skip Styles (Virginia Wetlands Watch) and Jessica Grannis (Georgetown University Law Center) about a planned legal case study of Virginia, while the author was developing the outline for this primer, provided some key insights for this chapter, such as the need to evaluate the authority that states provide local governments, and the challenge of the Dillon Rule in Virginia. See Andrew C. Silton & Jessica C. Grannis, Stemming the Tide: How Local Governments Can Manage Rising Flood Risks, Georgetown Climate Center (Review draft 2, 2010).

3.4.4 Rolling Easements and Cluster Development

4.1 Authority to Prohibit Shore Protection Go Forward

This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.

For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.

CHAPTER 4

CHOOSING THE APPROACH: IS THERE LEGAL AUTHORITY?

Local Navigation