Chapter 1
Introduction
The coastal zone is a dynamic place, and this statement has been true throughout recorded human history. For as long as humans have been inhabiting coastal areas and recording what occurs in their environments, coastal zones have been defined through dynamic interactions. The area between land and sea shifts as the tides move landward and seaward. Coastal storms arrive at the shore, moving large amounts of sand in the process, sometimes eroding coastal areas and other times adding dry landmass to the coast. Humans have also influenced the contours of coastal areas through dredging and filling operations, intensifying these operations with the advent of technological innovations throughout history. More recently, humans have begun to defend against tide and sea by building walls and other barriers that attempt to limit the approach of the ocean into the land.
All the phenomena mentioned above reinforce the changing nature of coastal areas; as such, it should come as little surprise that coastal boundaries do not remain fixed in time and place but rather are in a state of constant flux. This text is not about the kinds of changes mentioned above; changes that have been observed as part of the background conditions of coastal areas. Rather, this text is focused on a more recent development: observed sea level rise. Over the past several decades, sea level rise has become a relatively constant phenomenon in most coastal regions around the globe. Scientific inquiry into the causes of sea level rise has placed human activities, specifically carbon emissions into our atmosphere, as a major cause of this observed phenomenon. By increasing the amount of carbon in our atmosphere, the Earth is warming and thus causing water held as ice to begin melting. As the water melts, it runs off into the Earthās oceans, causing sea level rise. In addition, warmer temperatures cause water molecules to heat up, leading to the thermal expansion of water. This thermal expansion of water in our oceans is also adding to observed sea level rise.
Current sea level rise is different from the other phenomena mentioned above that cause changes to coastal areas. This currently observed sea level rise is a constant process that is occurring and, based on current best scientific estimates, will continue to occur for our foreseeable future. The question presented today is really neither about whether sea level rise is happening nor whether it will continue into the future, but rather how far sea levels will rise. This is an important question because the future extent of sea level rise defines what actions must be taken today in order to deal with the problem. For example, if the sea level only rises a few inches over the next 100 years, then there is little need to change current uses or expectations in most coastal regions around the globe. However, if sea level rises substantiallyāsay 20 feetāover the next 100 years, then planning must occur immediately to alter the uses and expectations of coastal areas that will be impacted by such a rise in sea levels.
The current state of science contains a lot of uncertainty about how far sea levels will rise over the coming decades, and this uncertainty is problematic when considering planning options. There certainly is enough ice on Earth to raise sea levels by 20 feet (there is enough ice to raise average sea levels over 200 feet and more, which would be devastating). The question is not what is possible, but rather what is probable when contemplating planning for adaptation toward sea level rise. By knowing what is probable in terms of sea level rise, planners are better able to make decisions about how to plan for this anticipated rise. When information about future sea level rise is certain, the choices about what needs to be done today are clear. When the information about future sea level rise is uncertain, the choices about what should be done today are less clear. This brings us to the purpose of this text: to explain the causes of sea level rise, the policy options related to sea level rise planning, and finally to consider the legal implications of different policy directions.
It is important to note that this book is not about preventing sea level rise or mitigating its impacts. Rather, this text focuses on sea level rise as a given and discusses policy planning issues that arise when focusing solely on adaptation strategies to sea level rise. Thus, the key difficulty presented in this text surrounds making policy choices about how to adapt to future sea level rise when there is uncertainty about how high sea levels will rise in the future. If we knew the extent of sea level rise in the future, then it would be much easier to take action today with planning recommendations that limit the amount of harm caused to coastal areas in the future; for example, knowing sea level rise will inundate a coastal town in 10 years provides enough certainty to justify a policy that requires the retreat of that area within a 10-year period. However, the high degree of uncertainty over the extent of future sea level rise makes the task of planning today difficult. Not only is the task difficult in terms of anticipating future unknown events, but certain lawsāincluding judicial interpretations of those lawsācreate even greater difficulties in limiting how coastal land is used without triggering a requirement that government pay citizens for planning that prohibits current uses of private land.
The goal of this text is to distill the science, policy, and legal issues surrounding sea level rise into a coherent set of principles that both identify important issues for consideration, and then discuss those issues in light of current law and policy paradigms. By understanding how the current state of the law impacts policy choices, the hope is to provide those who are involved in studying or practicing coastal management a set of analytical tools to better understand the relationships between policy choices and legal frameworks impacting those choices. As shown in the text, the law often provides limitations on government actions, particularly foundational constitutional principles that cannot be easily overcome by simply passing a law or regulation that violates these foundational principles. Thus, understanding these legal limits on public planning for sea level rise is an important starting point in making informed policy choices. Once these limitations are understood, policy directions can be better mapped out. Sometimes the law will limit what seems like a superior set of policy choices for adaptation by making the decision untenable because of the financial consequences that might apply to such policy choices, as is the case with the Fifth Amendment of the United States Constitutionās requirement that just compensation be paid for the taking of private property. Thus, policy directions that amount to a ātakingā of private property, whether directly or indirectly, may require that the government pay full freight for the policy direction, and this legal requirement may make the policy choice inferior because of its costs even though it is superior in other measures. This is but one example of how legal frameworks can impact policy directions. The different impacts legal frameworks can have on policy choices are highlighted in greater detail throughout this text.
This book has been divided into three main sections, each section divided into its own chapter, to clearly accomplish the goal identified above. The first section, Chapter 2, focuses on the science behind sea level rise. The goal of this chapter is to connect currently observed sea level rise with the science behind future predictions of how far sea level will rise, and also to provide the reader with some basic understanding of how different coastal features can influence the impact of sea level rise. Collectively, this information is meant to provide a foundation of knowledge about sea level rise dynamics, including the forces involved in its causes, as well as the forces and features that influence its impact on coastal areas. At the conclusion of Chapter 2, the reader should have a solid foundation of the basic factors that influence the processes and impacts of sea level rise on coastal areas. Armed with this information, the reader is ready to place policy choices into context.
Chapter 3 focuses on the policy options that are available in adapting to sea level rise. It begins with a section on understanding basic policy goals by discussing net benefit quantification methods (a way of rank ordering different adaptation approaches), as well as understanding the role and impact of uncertainty in developing and choosing between sea level rise policy approaches. After discussing these concepts, Chapter 3 focuses on the different kinds of adaptation approaches that may be taken in dealing with sea level rise. Three main categories of approaches are highlighted: (1) staying at the shore, (2) retreating from the shore, and (3) a mix of hybrid approaches that employs some measure of stay and retreat options. Finally, Chapter 3 concludes by considering adaptation approaches from economic, social, and ecological viewpoints. Viewing approaches through these different lenses can alter the ways in which benefits and costs are calculated, thus altering a net benefit analysis. Understanding how different lenses can influence a determination of net benefits is an important part of identifying and choosing between policy directions even without considering the impact legal frameworks have on choosing between competing adaptation choices.
Chapter 4 summarizes the major legal considerations that influence adaptation choices toward sea level rise. Critical to this discussion is understanding the nature of property rights in land generally, and how these rights are viewed in combination with constitutional principles that protect private property rights (Fifth Amendment protections) and constitutional principles that empower state and local governments to protect citizens from known and reasonably understood dangers (Tenth Amendment police powers). The mix of constitutional powers and prohibitions provides the context from which policy planning that impacts private property rights begins; any policy that influences private property rights must be understood in relation to the powers and limitations placed on government in regulating land. This discussion of constitutional power interactions between the Fifth and Tenth Amendments to the U.S. Constitution provides a grounding point for this chapter. From this grounding point, the chapter discusses the legal issues from the role government takes in implementing policy directions. For example, when government acts in its regulatory capacity to develop and implement sea level rise adaptation policies, there is a greater chance that regulation may trigger a regulatory taking of private property rights when the policy results in limitations placed on the use of private property rights. Contrarily, if government adopts a policy direction that stems from a nonregulatory stance, then there is less chance the policy will implicate Fifth Amendment prohibitions on the taking of private property. The ways in which government may act outside its regulatory nature are discussed in some depth in this chapter offering policy makers the opportunity to understand how to develop adaptation policies that stand a better chance of avoiding legal frameworks like taking challenges.
Collectively, the three main chapters identified above are meant to provide a summary understanding of the law and policy considerations that impact coastal zone planning for sea level rise adaptation strategies. Each chapter introduces its major goals and, where appropriate, links those goals to the information provided in other chapters within the text. Although the text is meant to flow from start to finish, the chapters can be read out of sequence as references are made to other sections of text where appropriate. Because the text discusses three related disciplines (science, policy, and law), which each require significant depth for full understanding, the text does not serve as a comprehensive discussion on any one topic. The lack of depth in any one topic is necessitated in order to provide an understanding of the interactions between the science, law, and policy issues discussed. However, where appropriate, citations to primary materials with greater emphasis in each area are provided to allow the reader to gain additional insight and understanding where they deem appropriate. With this limitation stated, the hope is that each reader will find important conceptual connections between the kinds of actions needed to be taken in coastal planning to help proactively deal with sea level rise both today and tomorrow. By connecting the kinds of choices available for sea level rise to the legal frameworks that limit policy planning, this text should serve as an important framework by which meaningful adaptation planning can occur.
