Land Use and Climate Change: Lawyers Negotiating Above Regulation

Abstract

Sea level rise requires a new paradigm for controlling the development of coastal lands that are in harm’s way, calling for adjustments in the law, legal practice, and legal education. This article discusses the historical tendency of the law to adjust to changes in society and the recent emergence of new legal institutions and strategies for mitigating and adapting to climate change, particularly sea level rise. It illustrates how the lack of certainty about the extent and pace of sea level rise collides with the total takings doctrine of the Lucas case to frustrate the application of traditional land use and environmental regulations. It then demonstrates how this causes lawyers and public officials to rise above regulations and adopt new approaches to limiting development at the ocean’s edge where sea level rise and storm surges threaten lives, ecosystems, private property, and public sector investments. The article advocates the use of negotiated problem-solving strategies for controlling coastal development in this post-regulatory moment. It concludes with some reflections on the impact of these changes on both the practice of law and legal education.