Assessing the Legal Toolbox for Sea Level Rise Adaptation in Delaware: Options and Challenges for Regulators, Policymakers, Property Owners, and the Public

199 Pages Posted: 22 May 2014

See all articles by Kenneth Kristl

Kenneth Kristl

Widener University Delaware Law School

Date Written: May 21, 2014

Abstract

Sea level rise is a real and growing issue in the State of Delaware. Over the next 90 years, a significant percentage — between 8 and 11 percent — of Delaware is at risk of being inundated. The threat of inundation has the potential to trigger reactions from some property owners that will seek to protect their interests. Thousands of these resulting individual, ad hoc decisions and non-decisions will make it difficult to carry out a unified strategy to adapt to the massive economic and geographic impacts sea level rise will likely cause in the State. It therefore behooves regulators, policy makers, property owners, and the public to begin to think about whether or not a unified strategy is best for the state and, if so, what that unified strategy should be.

This Report/Book analyzes eight different legal tools that could be used to implement a unified adaptation strategy: zoning; acquisition and buyback programs; building restrictions/prohibitions; setbacks and buffers; conservation easements; rolling easements; transferable development credits; and real estate disclosures. The Report explains what each tool is, how it can be used as part of a sea level rise adaptation strategy, and general legal issues that use of the tool might raise (such as takings). The Report then analyzes the current state of the tool under Delaware law, and provides recommendations for changes needed in Delaware law if the public and government officials wish to utilize the tool as part of a sea level rise adaptation strategy in Delaware. It is intended to facilitate the complex public discussion that must take place to make the hard choices that sea level rise demands.

Keywords: sea level rise, environmental law, climate change, adaptation, Delaware

JEL Classification: K11, K32

Suggested Citation

Kristl, Kenneth, Assessing the Legal Toolbox for Sea Level Rise Adaptation in Delaware: Options and Challenges for Regulators, Policymakers, Property Owners, and the Public (May 21, 2014). Widener Law School Legal Studies Research Paper No. 14-17. Available at SSRN: https://ssrn.com/abstract=2439805

Kenneth Kristl (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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