Sea Level Rise and Gulf Beaches the Specter of Judicial Takings
13 Pages Posted: 10 Jun 2011
Date Written: June 3, 2011
The BP oil spill recently focused the nation’s attention on the importance of beaches to the economies of the states bordering the Gulf of Mexico. These beaches have, however, been under attack for many decades by erosion from storms and other natural forces, as well as construction and maintenance of navigation inlets and rampant coastal development. Sea level rise will exacerbate erosion and loss of beaches. In many Gulf of Mexico states, however, the projected rate of beach loss due to sea level rise is overwhelmed by the current background rate of erosion. In Florida, for example, because the erosion rate is already so substantial, beach restoration and nourishment are considered to be economically viable adaptations to sea level rise for the next 50-100 years. While restoration is arguably not a long-term solution to sea level rise, beach restoration has many benefits over armoring of the shoreline where the level and scale of development makes retreat economically unviable. While armoring may protect structures, it will inevitably lead to loss of beaches, habitat and tidal public trust lands.
The continued viability of beach restoration as an adaptation strategy presumes that current legal regimes for carrying out these projects can withstand constitutional challenges and that takings challenges and compensation of littoral property owners will not be part of the cost of the projects. In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Florida withstood a first attack on the Beach and Shore Preservation Act as well as a challenge to the Florida Supreme Court’s interpretation of the common law principles embodied in the Act. The case provided the opportunity, however, for Justice Scalia to introduce his theory of a new genre of “takings” under the Fifth and Fourteenth amendments - judicial takings. This symposium article discusses the Stop the Beach Renourishment case in both the Florida and U.S. Supreme Courts and reviews Justice Scalia’s theory of judicial takings. It then discusses the continuing challenges to beach restoration as a beach management and sealevel rise strategy, both from the perspective of the legal issues that remain unresolved and the chilling effect of the specter of judicial taking.
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