Water You Waiting For? Balancing Private Rights and Public Necessity in the South Atlantic Wetlands

Authors

Alison Leary, Washington and Lee University School of Law

Abstract

A healthy and robust network of wetlands protects coastal communities from storm damage caused by hurricanes. Unfortunately, development pressures threaten wetlands along the South Atlantic coast, the region most susceptible to an increased risk of climate change induced hurricanes. If these wetlands are not protected from destruction, coastal communities will be left without a buffer against flooding, storm damage, and sea level rise. In addition to putting the public at large in physical danger, significant environmental justice concerns accompany the failure to protect coastal wetlands. In order to protect these ever-diminishing resources, federal and state law makers have enacted regulatory regimes that combat wetland degradation. However, these regimes are severely flawed, as they: (1) are difficult for private property owners to navigate; (2) lack inter-governmental coordination; and (3) give rise to litigable conflicts between private property owners and state and federal regulators. The 2013 Supreme Court decision Koontz v. St. John’s River Water Mgmt. Dist., which extends the essential nexus and rough proportionality requirements of Nollan v. California Coastal Commission and Dolan v. City of Tigard to monetary exactions, threatens to further undermine the efficacy of these regulatory regimes by inducing a regulatory chilling effect, Thus, this note argues that courts should extend the application of the public necessity defense to regulatory takings cases, thereby absolving the government of takings liability, where the state can show that the destruction of coastal wetlands will expose vulnerable communities to harm from hurricanes and sea level rise.

Recommended Citation

Alison Leary, Water You Waiting For? Balancing Private Rights and Public Necessity in the South Atlantic Wetlands, 6 Wash. & Lee J. Energy, Climate & Env’t. 245 (2015), https://scholarlycommons.law.wlu.edu/jece/vol6/iss1/8