It is a near scientific certainty that sea levels will rise between one and eight feet by the end of the century. This will wreak havoc on our infrastructure, ecology, and public health, and cause an unquantifiable amount of economic damage. Given the inevitability of sea level rise, state and local governments must facilitate the managed retreat of people and property away from vulnerable coastal areas. However, governments’ ability to facilitate managed retreat comes head-to-head with the Takings Clauses of the United States and Maine Constitutions, which state that the government may not take private property without paying just compensation. This Comment analyzes two methods of managed retreat: (1) use of eminent domain and (2) implementation of rebuilding restrictions. Because eminent domain is costly, politically fraught, and can have the effect of marginalizing already vulnerable populations, local governments should instead implement rebuilding restrictions to facilitate managed retreat. Rebuilding restrictions are an optimal managed retreat tool because they gradually move populations away from the coast and are unlikely to result in successful takings claims that require the government to pay just compensation under either Lucas v. South Carolina Coastal Council or Penn Central Transportation Co. v. City of New York. Without having to pay just compensation under the Taking Clause according to fair market value of the property, the government is able to develop an alternative means of reallocating coastal communities that is more equitably attuned to the economic and social needs of vulnerable populations.
Maye C. Emlein,
Rising to the Challenge: Managed Retreat and the Taking Clause in Maine's Climate Change Era,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol73/iss1/6