In the Summer 2013 volume of Hasting West Northwest Journal of Environmental Law & Policy, Emmett/Frankel Fellow Megan Herzog and Environmental Law Center Executive Director Sean Hecht discuss how Southern California local governments can seize sea-level rise adaptation opportunities while minimizing legal risk.
As the primary coastal land use decisionmakers in Southern California, local governments will make choices that will shape the region’s resilience to sea-level rise. To implement adaptation plans effectively, local governments must understand the ways law enhances their adaptive capacity by providing them with the necessary legal authority to take actions to adapt to changing sea-level conditions. Additionally, local governments must appreciate legal risks—that is, potential legal limitations on adaptation tools, as well as potential liability to private parties for harms related to the adverse effects both of adaptation actions and sea-level rise itself. This article identifies how local governments can harness legal doctrines to support aggressive, innovative strategies to achieve successful sea-level rise adaptation outcomes for Southern California while minimizing legal risk. We broadly outline likely sea-level rise impacts in Southern California, and evaluate the risks and opportunities of potential protection, accommodation, and retreat adaptation strategies that local governments could deploy. We focus primarily on four categories of legal issues that may be implicated as Southern California localities plan for the impacts of sea-level rise: 1) the California Coastal Act, 2) the public trust doctrine, 3) the constitutional takings doctrine, and 4) the California Environmental Quality Act. We divide our analysis of these legal doctrines into their potential interactions with both private development and critical municipal infrastructure like roads, power plants, and ports. Overall, we demonstrate how Southern California local governments can harness their existing regulatory authority to support aggressive sea-level rise adaptation strategies and, through proactive planning and smart decisionmaking, mitigate potential legal liabilities.