Climate Change And Regulatory Takings In Coastal Hawaii

by Robert Thomas, www.InverseCondemnation.com

"There is strong consensus in the international scientific community that climate change is occurring and that greenhouse gas emissions from human activities contribute to climate change."

So begins Climate Change and Regulatory Takings in Coastal Hawaii, a monograph by Douglas Codiga, Dennis Hwang, and Chris Delaunay, published by the University of Hawaii Sea Grant College Program's Center for Island Climate Adaptation and Policy.

We're not entering into the debate about whether global warming/climate change is or isn't happening. But the one certain thing is that every regulatory entity from the U.N. on down to your local neighborhood board believes it is real, and seems to want to do something about it. Thus, the question is how property owners may be affected by those actions, and what they can do in response. This report doesn't really resolve anything, but it does establish the framework and makes some recommendations. From the summary:

The Center for Island Climate Adaptation and Policy (“ICAP”) at the University of Hawai‘i Sea Grant College Program has prepared this paper to examine the interactions among climate change, the regulation of shoreline development in Hawai‘i, and Constitutional law regarding unpermitted takings of private property for public benefit. The use and development of coastal property in Hawai‘i is governed by a complex array of laws and regulations addressing a range of concerns, from protecting human health and safety from life-threatening natural hazards to preserving public access and scenic view planes. A critical aspect of the interaction between climate change and the law is the requirement under the U.S. and Hawai‘i Constitutions that the government compensate private property owners for unpermitted "takings" of their properties.

. . .

Hawai‘i’s current regulatory regimes related to climate change impacts in coastal areas may generally be expected to withstand anticipated takings claims. By focusing on hazard reduction and mitigation, government actions may be better insulated from takings challenges brought by owners and developers of coastal properties in Hawai‘i. Regulatory decisions rarely leave property completely valueless and therefore few regulatory decisions are likely to violate the Lucas "total loss" takings test. Enforcement of climate change-related regulations to prevent harm to public trust resources will likely withstand takings challenges if the court considers the resources to be part of Hawai‘i’s background principles of property law and nuisance.

The report notes that "existing property laws, however, may pose limits to regulation of coastal development of private property by government agencies seeking to address climate change impacts," and discusses the takings limitations on the power of the government to regulate freely. The report walks through the basic principles of regulatory takings law (the government cannot force "some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole"), and sets out the Lucas per se test, as well as the ad hoc Penn Central test for determining when regulation "goes too far" and requires compensation.

The report focuses on the Penn Central test (economic impact, character of the government action, interference with distinct investment backed expectations), and provides a rough roadmap for regulators on how to avoid takings claims (object on ripeness grounds, avoid categorical claims by asserting the regulations are part of "background principles" of nuisance law, argue the owner benefits from the regulations, assert the impacted property is only part of the landowner's holdings so she can afford the regulatory burden, argue that the regulations are designed to protect the public and that the owner purchased the property after the regulatory regime was imposed [so hurry up and regulate!], make public trust claims, and use PASH rights to overcome taking objections). This is nothing new of course, and is simply a summary of the current state of the law, which is stacked against property owners and in favor of regulators.

This section concludes:

Although no definitive conclusions about the potential viability of takings claims may be drawn absent the specific facts of a specific case, the following discussion suggests Hawai‘i’s current regulatory regimes related to climate change impacts in coastal areas may generally be expected to withstand anticipated takings claims.

Report at 9. Regulate away, in other words. The report then reviews specific situations and makes recommendations:

• "Use setbacks in a manner that leaves some economically viable use of the land."
• Regulate early in the process and back up regs with data to prevent owners from claiming that their significant investment-backed expectations are "reasonable" (note that the test vacillates between "reasonable investment-backed expectations" and "distinct investment-backed expectations;" whether that is a true distinction remains an open question).
• Emphasize the hazard mitigation aspects of regulation, rather than the environmental or aesthetic concerns.
• Deny subdivision of land early rather than wait for later in the process. Amend subdivision rules to add provisions requiring hazard assessment as a condition of subdivision approval. Include a variance process (barista's note: to avoid Lucas claims, and throw up a Williamson County barrier by adding a claim that the landowner whose subdivision is denied "should have sought a variance").
• Avoid takings claims by emphasizing the hazard mitigation aspect of shoreline setbacks, so even if a setback prohibits all use it might be deemed to be part of a "background principle."
• In cases of shoreline hardening cases, focus on public trust resources, emphasize that littoral landowners understand that their property boundaries are ambulatory, and (again) emphasize that the denial of a request for shoreline hardening is based on the need to mitigate hazards to the property and the entire beach.
• "Consistent with the paramount importance of hazard-based planning and regulating,
• however, flood hazards should be addressed at the siting rather than construction stage of development."
• Consider "rolling easements" and "managed retreat" regulations.

None of the above should come as a huge surprise for anyone who follows this issue in Hawaii and elsewhere. In a report sponsored by the "Center for Island Climate Adaptation and Policy," we should not expect to see a primer on how to minimize regulation or how to compensate property owners, but a call for more regulation, guidelines for how to avoid takings claims, and little discussion of cases in which a regulatory regime was successfully challenged (see here and here, for examples). Nor is there a recognition that in some takings cases, the government's justification for the regulation is not relevant, and therefore a claim of "hazard mitigation" will not insulate the government from providing compensation.

Now don't get us wrong: we're not suggesting that global warming and sea level rise aren't legitimate issues, or are we calling for unbridled coastal development. But what seems to be missing from this report is an acknowledgement that it is important to consider the rights of private property owners when regulators are deciding how to address these issues, and not treat them merely as inconvenient speed bumps along the road to hazard mitigation and an eventual depopulating of private shoreline property.

We'll be talking about these issues at the January 11, 2012 Hawaii Water Law Conference. We have two sessions devoted to climate change, hazard mitigation, and coastal zone issues. Two of our featured presenters are law prof David Callies and Ed Thomas, both of whom are acknowledged in the above report.

Our thanks to Michael Cote (Association of Climate Change Officers) for the heads-up.