Historical Preservation Laws and Long-Term Climate Adaptation: Challenges and Opportunities

20 Pages Posted: 26 Aug 2019 Last revised: 1 Feb 2020

See all articles by Rebecca Neubauer

Rebecca Neubauer


Heather Payne

Seton Hall University - School of Law

Date Written: June 1, 2019


During October 2012, Superstorm Sandy became the largest Atlantic hurricane on record, ravaging the US Eastern Seaboard. While the storm caused billions of dollars in property damage and clean-up costs, it also provided a wake-up call to the risks faced by our historic national treasures. Ellis Island, the gateway to the American dream for millions of immigrants, was completely submerged under the massive storm surge caused by the hurricane. Liberty Island, home to the iconic Statute of Liberty, was 75% submerged and faced tens of millions of dollars of damage. The intensity of Superstorm Sandy and its aftermath revealed that rising sea levels and aberrant weather events are increasingly placing our nation’s historic landmarks and sites of cultural heritage at risk. While the impacts of climate change may potentially devastate historical sites, hope is not lost. As oceanographer John Englander points out, we are given a “blessing” in some ways because, “unlike a storm, rising sea level does give us time to prepare.”

To protect precious historic resources in the face of climate change, the first thing that must be “adapted” is our nation’s overall preservation approach. The importance of preserving historic and archeological sites has long been recognized in the nation, with a comprehensive preservation scheme codified with the passing of the 1966 National Historic Preservation Act. This landmark piece of legislation embodied the traditional concepts of preservation: that historic buildings and their cultural landscapes should remain intact, in their original locations, with their original features. However, a changing climate will challenge the traditional approach. Treasured historic properties are becoming increasingly vulnerable in their current conditions and locations. Many of the sites crucial to the development of the nation are located along the coasts and are at most risk from rising sea levels. Flood-proofing measures and adaptation plans will be critical strategies for withstanding sea level rise in the decades to come, but many of these strategies are incompatible with federal, state, and local historic preservation laws. Raising the elevation of a historic home or refurbishing it with modern materials may make the property more resilient, for example, but will fundamentally change its look and be inconsistent with the character of a historic district.

To promote adaptation and protect precious resources, preservationists therefore should re-evaluate what it means to “save” a historic building or cultural landmark. Given rising sea levels, maintaining a structure as is, in its historical location, could end up being a death sentence for the structure in its entirety; introducing flexibility into the standards for gaining and retaining historical designations will be needed. This white paper maintains that both the federal government and local governments will have large but different roles to play in adaptation efforts designed to conserve the nation’s history and culture under the existing national preservation framework.

Section I examines the statutory schemes behind two major federal laws that impact decision-making regarding historic structures: the National Historic Preservation Act and the National Flood Insurance Program. The section then highlights the relationships between the regulatory schemes promulgated under these federal laws and suggests how new adaptive measures and incentives can be built in to encourage resiliency planning and action for vulnerable buildings. Section II moves away from individual historic property decision making and suggests how climate change resiliency strategies can be incorporated into the review procedures required by the National Historic Preservation Act when federal agency actions affect historic properties. Section III maintains that while changes to federal regulations will be important for a long-term and cohesive preservation response to climate change, local governments will be on the frontline of identifying and protecting their most vulnerable and cherished historic assets. This section highlights important local work being done to preserve cultural heritage and suggests a model for other susceptible coastal cities to undertake while waiting for policy change on a national scale.

Keywords: historic preservation, adaptation, sea level rise, resiliency

JEL Classification: R38

Suggested Citation

Neubauer, Rebecca and Payne, Heather, Historical Preservation Laws and Long-Term Climate Adaptation: Challenges and Opportunities (June 1, 2019). Seton Hall Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3441448 or http://dx.doi.org/10.2139/ssrn.3441448

Rebecca Neubauer

Independent ( email )

Heather Payne (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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