Coasts in court

Watch for waves of litigation

States and localities facing dramatically rising groundwaters and chronic inundation along coastlines are already struggling with what to do. Regulating the oceanfront, condemning homes, limiting growth to avoid putting more people in harms' way—none of this is easy.

Inaction is also risky: Recently, a UK claimant living near the North Sea took his government to court for failure to have a plan to protect his community from the ravages of flooding and coastal erosion. The road to his house had collapsed. "It feels like we're being forgotten up here," he said.

Here’s his town, Hemsby.

It could get very wet there.

So far in the US, governmental land use regulation along coastlines is being routinely challenged. Pass a state statute redrawing the boundaries of beachfront private property to reflect physical changes in sea levels? Litigation. Be a city challenging the idea that artificially "re-nourished" beaches can be transformed into private land—to be sold to the next sucker who doesn't realize that their lot will be underwater again in a few years? Litigation. Are you a state coastal commission trying to keep beachfront property owners from erecting (ultimately destructive) private seawalls? Expect litigation.

The Pacific Legal Foundation, which calls itself "a libertarian group that opposes big government," is often a party in these US cases. PLF, founded in 1973, specializes in "protect[ing] coastal land rights" and is working very hard on its battle to "restor[] the right to private property to its coequal status with other civil rights." In other words, PLF's view is that property rights are just like free speech and freedom of religion. From their perspective, "property rights are the foundation of liberty."

Bloomberg profiled the Foundation recently, noting that the firm had doubled in size since 2016 and was filing more cases than ever. Their funding has increased by 70 percent since 2020. 

PLF has been quite successful in the Supreme Court, and this past year led the team that sharply limited the government's power to regulate wetlands and streams under the Clean Water Act. (Sackett v. EPA.) This past summer, they sought to have the Supreme Court agree that cases about local land use regulations that have some arguable effect on property values should go straight to federal courts—no matter when those cases began. Their petition was denied in June.

PLF had already won a 2019 case, Knick v. Township of Scott, that sent a boatload of state court land use cases right to federal courts. Their petition filed this past summer made clear that PLF wants more: They want those claims to be unconstrained by doctrines like sovereign immunity (which usually protects states from suit), or procedural limits like state statutes of limitations. They want the federal courts to be able to skip any state jurisprudence about the standard of review courts should use when examining state or local administrative actions. They want federal courts to jump in right away to decide when compensation is due from the government for acts PLF believe amount to "takings "—without having to go through any state process. Their claim is that property rights have too long been treated like the "poor relations" among the provisions of the Bill of Rights. They want the Just Compensation Clause of the Constitution to always be viewed as "self-executing," meaning that no legislative structure is needed or listened to when these civil rights claimants, who we used to think of as property owners, feel like suing for compensation. 

Essentially, PLF wants to constitutionalize squabbles over zoning. What we might have thought of as mere economic regulation, or maybe as public safety rules (watch out for that wave!), take on the appearance of attacks on fundamental, almost-religious, rights that should rigidly be protected against government intervention. Otherwise, PLF says, "Wielding their discretion as weapons, land use regulators 'can effectively move the goalposts with ever-new demands for redesign after redesign.'" 

Well, the climate is moving the goalposts. There will be redesigns after redesigns needed, forever. In the meantime, we're in for a long slog in the courts.