Strategies for Making Sea-Level Rise Adaptation Tools 'Takings-Proof'

Abstract

While the costs of some Sea-Level Rise (SLR) adaptation tools are undeniably daunting, the American legal system poses an additional, potentially budget-busting impediment — the Takings Clause of the Fifth Amendment to the United States Constitution. Officials at all governmental strata and from all three branches should keep the demands made by the Takings Clause, as interpreted by the judiciary, in mind as they choose tools from the diverse SLR-adaptation toolbox, as they justify their choices to the electorate and other constituencies, as they put those tools to use, and as they defend that use from litigants claiming abuse. This article sets out to achieve four tasks: First, the article locates the heart of the Takings Clause in a single sentence from a 1960 decision — Armstrong v. United States. Second, the article reviews six taking varieties, ranging from the most concrete common — the affirmative exercise of eminent domain — to the most fanciful — judicial takings. Each variety in turn is matched with one representative Supreme Court decision and with operative language drawn from that opinion. Third, with Armstrong as a guiding principle, the article identifies which of the most common SLR tools already being deployed pose “no,” “minimal,” “moderate,” and “serious” takings implications. Fourth, the article suggests methods that government officials can use to address the challenge posed by tools with the highest takings risk.

Keywords: Sea-level rise, SLR, environment, climate change, regulatory takings, eminent domain

JEL Classification: K11, K32