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                          * Square Peg, Round Hole: Sea-Level Rise Adaptation Without Legislative Action

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                        Square Peg, Round Hole: Sea-Level Rise Adaptation Without Legislative Action

                            Wednesday, October 19, 2016

                                    David Roche

                                    Staff Attorney

                            The legislative process is complicated. Sea-level rise adaptation is complicated. Combine the two, and a tangled mess can result as the law sorts itself out.

                            Few laws on the books were written with sea-level rise (or climate change, generally) in mind. As a result, policymakers, lawyers, and property owners are left to their own devices to determine how it all fits together. This round hole-square peg legal setup often requires judicial adjudication to become workable and uniform.

                            At the national level, the regulation of greenhouse gases under the Clean Air Act is a great example. But similar reconciliation of old laws with new environmental problems is happening in almost every state in the country. For example, take California (as the ocean will literally try to do to vulnerable coastal areas if the worst-case scenario sea-level rise projections come to fruition). In California, the state and local governments are admirably trying to adapt to sea-level rise using existing legal tools. However, disrupting the status quo in coastal decisionmaking increases legal risk.

                            Seawalls

                                                    
                              Photo by Ariel E Barry
                              

                              Nowhere is this more evident than with seawalls. Seawalls are just what they sound like—structures that obstruct the ocean, designed to block waves from storms or to prevent sea-level rise from swallowing coastal development. But like Anakin Skywalker, seawalls have a dark side. They can increase erosion substantially, cause flooding in adjacent land, and damage beaches by curtailing natural sand transport. More and more, the consensus among policymakers along the California coast seems to be that most new seawalls are officially given up to the dark side—the Darth Vader of adaptation strategies.

                              The California Coastal Act governs development like seawalls, and it was written in 1976, long before the interaction of seawalls and sea-level rise was identified. Under Coastal Act §30235, seawalls “shall be permitted when required to serve coastal-dependent uses or to protect existing structures or public beaches in danger from erosion, and when designed to eliminate or mitigate adverse impacts on local shoreline sand supply.” Meanwhile, under Coastal Act §30253, seawalls must “neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area.” Moreover, the rest of the Coastal Act has other provisions that could be read to allow discretion based on policy priorities (for a great summary of the major issues, see this 2013 article by Megan Herzog & Sean Hecht of UCLA). In other words, it’s a bit of a tangled mess.

                              These issues came to a head in Lynch v. California Coastal Commission, where property owners applied for a seawall permit, which was approved with conditions. The conditions led to a takings lawsuit under the theory that seawalls “shall” be permitted under §30235, arguing that language is not permissive. The main condition at issue was a 20-year duration for the seawall permit, which the California Court of Appeals found could be supported by several pieces of evidence, including that sea-level rise will change shoreline protection needs. As part of that finding, the court emphasized that the language of the Coastal Act is permissive, not exclusive. In other words, the sections of the Act must be read together—§30235’s provision saying seawalls “shall” be permitted in certain instances does not preclude balancing of other factors, like the Coastal Act’s purposes of preserving marine resources and protecting public access.

                              The Lynch case is currently before the California Supreme Court, which will decide this seawall issue once and for all . . . right? Well, possibly not. As other California cases have illustrated, often courts make narrow, fact-specific decisions that may not provide binding precedent except in a small range of circumstances. ELI and others interested in coastal adaptation will be watching closely when the decision is made sometime in the next several months.

                              Takeaway

                              The big takeaway from this mini-case study is that climate change adaptation is not impossible, but it is also not easy. It is essential for local and state governments to understand their legal risk when making decisions about coastal planning and development.

                              In California, numerous efforts are under way to adapt. These efforts can hopefully serve as a template for the rest of the United States, and possibly even the world. Because even though it’s sometimes not easy to make decisions that are exposed to legal risk without legislative action, it’s essential not to give up and give in to the dark side of the status quo.

                                * Oceans and Coasts

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