Of Sea-Level Rise and Superstorms: The Public Health Police Power as a Means of Defending Against 'Takings' Challenges to Coastal Regulation

Abstract

Both the reality of sea-level rise and the increased risk of severe storms call for new coastal management responses. To date, however, most of these responses have been framed — logically enough — as land use planning. Specifically, coastal states have been experimenting with coastal retreat, rolling easements, building moratoria in the coastal zones, perpetual easements, and other land use-based approaches that both anticipate and react to coastal inundation.

While measures framed as “land use planning” might, in a vacuum, be appropriate and effective legal responses to the actuality and threat of coastal inundation, on the ground they often “interfere” with how owners can use coastal private property. In turn, the owners of the properties that coastal regulation affects often sue the responsible state, claiming that the state has unconstitutionally “taken” their property in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and/or similar provisions in the relevant state’s constitution.

The U.S. Supreme Court has made clear that the land use police power is no longer a complete defense — as it once was — to land use-based regulatory takings claims. Importantly, however, neither courts nor the general public treat all state exercises of the police power the same. In courts, state regulation that directly protects the public health from traditional and imminent public health concerns (disease, toxic exposures ) provides states — de facto if admittedly only rarely de jure — with more effective insulation from regulatory takings claims.

To date, however, no coastal state has seriously framed its legal measures to deal with coastal inundation as public health protection. Nevertheless, the public health threats posed by coastal inundation — both slow sea-level rise and catastrophic storms — are real and numerous. This article argues that coastal states would gain considerable advantage in responding to constitutional regulatory takings challenges if they framed their legal measures to deal with coastal inundation as public health regulation.

Keywords: regulatory takings, constitutional takings, inverse condemnation, sea-level rise, superstorms, coasts, coastal inundation, public health, climate change