The Cathedral Engulfed: Sea-Level Rise, Property Rights, and Time

id=1695697. 84 LOUISIANA LAW REVIEW [Vol. 73 The local-government development restrictions required by the NFIP are inadequate even without the increased risks of climate change. Even more alarming, the flood maps used to assess risks do not in any way take into account the certainty of future sea-level rise. Federal law has required that flood maps be calculated only on historic flood experiences and does not permit FEMA to take into account scientific models predicting increased future flooding due to climate change and other factors. Congress very recently enacted legislation reforming some aspects of NFIP. The statute directs FEMA to revise flood maps based upon “future changes in sea levels, precipitation, and intensity of hurricanes” and to develop recommendations about how to incorporate climate change into regulatory maps. It may not grant FEMA the authority to actually affect development decisions, such as adjusting flood insurance premiums based upon the increased risk due to sea-level rise. Nonetheless, the Act does allow FEMA to develop more realistic flood maps, which local governments can use in crafting land-use regulations. Also, the Act phases out insurance subsidies for new homes, second homes, and properties subject to repetitive loss, and allows FEMA to raise premiums across the board to higher (but still capped) maximums. The Act, while imperfect to be sure, demonstrates the capacity for Congress to enact legislation to eliminate subsidies for nonsensical behavior in light of sea-level rise. It was a small price to pay for constructive legislation that all references to climate change were eliminated from the Act’s language in the final conference. Reforming flood insurance shows how market incentives can promote land use adaptation to sea-level rise without incurring taking problems. Eliminating insurance subsidies requires coastal residents to bear more of the real costs of doing so. Such costs 62. Biggert–Waters Flood Insurance Reform Act of 2012, Pub. L. No. 112141, 126 Stat. 405 (codified as amended at 42 U.S.C. § 4001–4129). See also Jessica Grannis, Analysis of How the Flood Insurance Reform Act of 2012 (H.R. 4348) May Affect State and Local Adaptation Efforts, GEORGETOWN CLIMATE CTR. (2012), http://www.georgetownclimate.org/sites/default/files/Analysis%20 of%20the%20Flood%20Insurance%20Reform%20Act%20of%202012.pdf. 63. 42 U.S.C. § 100216(b)(3)(D) (2012). 64. Id. § 100216. 65. See id. § 100211 (amending 42 U.S.C. § 4015). FEMA may still only establish insurance premiums based upon consideration of the “average historical loss year.” Id. 66. Id. § 100205 (amending 42 U.S.C. §§ 4014 & 4015(e)). 67. See Evan Lehmann, ‘Global Warming’ Disappears from Flood Legislation, CLIMATEWIRE (July 3, 2012), available at http://rstreet.org/wpcontent/uploads/2012/07/flood-climate.pdf. 2012] THE CATHEDRAL ENGULFED 85 should encourage retreat from rising seas and the choice to live further inland. II. ADAPTATION TO SEA-LEVEL RISE AND REGULATORY TAKINGS This Part of the Article seeks to identify the takings issues raised by each type of regulatory response to sea-level rise. There are three possible regulatory responses to sea-level rise: defense, retreat, or accommodation. The first two already have and will continue to present significant regulatory takings issues. The third, accommodation, refers to building codes that require structures to be raised or reinforced to withstand floodwaters. Such building codes frequently reside in local regulations designed to meet the NFIP’s requirements. These requirements have not given rise to takings claims and, as safety rules that expressly permit development, are unlikely to do so. Defense and retreat measures both engage property rights and present challenging, if different, regulatory takings issues. This Part will explain the purposes of and mechanisms for defense and retreat measures and then explicate the takings issues that each generates. Neither is different from regulatory steps taken in the past to address flooding or erosion, but the scale and ubiquity of sea-level rise will require their deployment to a degree that should stimulate fresh thinking about both regulatory design and the nature of constitutional protection for private property. Part III of this Article will propose time-triggered approaches to retreat regulations that seek a new balance between collective protections and private rights. Before considering the variety of regulatory responses to sealevel rise, a brief general introduction to the Takings Clause may be helpful. The Fifth Amendment to the U.S. Constitution provides: “[N]or shall private property be taken for public use, without just compensation.” It was intended to condition the exercise of eminent domain on compensation. Understandably, it was extended to require compensation when the government otherwise physically takes possession of property without the formalities of condemnation and was applied to the states through the Fourteenth Amendment. In modern times, courts 68. GRANNIS, supra note 10, at 23. 69. U.S. CONST. amend. V. 70. See William Michael Treanor, The Original Meaning of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782 (1995). 71. See Pumpelly v. Green Bay Co., 80 U.S. 166 (1871). 72. See Chic., Burlington & Quincy R.R. Co. v. City of Chicago, 166 U.S.