Managed Retreat Toolkit
Crosscutting Legal Considerations
State and local coastal governments considering and/or implementing managed retreat strategies will have to navigate a multi-jurisdictional legal framework. This section provides an introduction to that framework by highlighting the primary legal authorities and questions that governments may encounter. First, this section provides an overview of an overarching legal framework for managed retreat. Coastal zone management and land-use regulations will play a significant role in managed retreat. Second, this section highlights three primary legal considerations that are likely to arise in a managed retreat context: the regulation of private land uses and “takings” limitations; any duty to maintain public infrastructure and potential for negligence claims; and, the possibilities for cross-jurisdictional or regional governance structures. Within this legal framework, governments will need to balance financial limitations, safety, and environmental benefits with private property rights. Governments may also need to consider innovative cross-jurisdictional or regional managed retreat solutions in order to account for people, economies, and ecosystems that cross boundaries and straddle more than one level of government (i.e., federal, state, and local).
|Source: Integration and Application Network, University of Maryland Center for Environmental Science.
Planning for managed retreat must take account of applicable law. State and local policymakers should consult with their lawyers and involve them in planning processes to align community priorities and needs with legally feasible solutions. By involving community members in all stages of decisionmaking, policymakers can maximize environmental benefits and help ensure that policies are meeting community needs. Moreover, attorneys can help policymakers avoid or minimize legal challenges by identifying and addressing them early. Policymakers should not necessarily view all legal questions as insurmountable barriers to managed retreat. Oftentimes, there will be ways to navigate or overcome these legal risks. Proactive legal analysis can support policymaking in the public interest.
Many or most of the legal authorities and questions identified in this section are “crosscutting,” that is, they apply to more than one of the planning, infrastructure-related, acquisition, regulatory, and market-based tools presented in this toolkit. Accordingly, these legal considerations are presented in this standalone section of the Managed Retreat Toolkit. The authors of this toolkit recommend that state and local policymakers read this section in conjunction with the other sections, particularly that concerning Regulatory Tools. It is important to note, however, that application of this legal framework and potential takings and governance considerations will vary state-by-state and on a case-by-case basis, and is provided herein for educational and informational purposes only. When considering or implementing any managed retreat strategies, government officials and staff should consult their own legal counsel with respect to any questions or concerns that are specific to their jurisdiction.
This section introduces a three-part legal framework to guide state and local decisionmaking around managed retreat. The framework identifies the primary legal authorities that governments may have to comply with if they choose to implement different planning, infrastructure-related, acquisition, regulatory, and market-based tools.
The Fifth Amendment of the U.S. Constitution and analogous provisions of state constitutions prohibit the government from “taking” private property without “just compensation.” This prohibition has been applied to government regulations, where the regulations are so onerous as to effectively "take" private property. This section presents the most likely types of takings claims governments may encounter in a managed retreat context and suggests some ways to reduce or minimize potential legal liability.
In the context of disinvestment decisions relating to public infrastructure, such as roads and bridges, governments may encounter claims that they have breached a duty to maintain that infrastructure. This section provides an overview of the concepts of duty, negligence claims, and potential defenses relating to the maintenance of roads.
The cross-jurisdictional nature of coastal climate impacts, as well as shifting populations, tax bases, and ecosystems, may make it necessary for states and particularly municipalities to consider regional governance structures for managed retreat. Governments can evaluate different regional approaches for managed retreat, including through legal agreements, changing municipal boundaries, plans, and informal forms of collaboration to enhance the economic, environmental, and social benefits of retreat.