What Climate Change Can Do About Property Law*
*With Apologies to Professor Doug Kysar
Harvey and Phyllis Karan are lucky that their beachfront home on the Jersey shore suffered little damage from Hurricane Sandy. Not long before Sandy hit, the Army Corps of Engineers completed a dune replenishment project, raising a dune in front of their home and providing protection from the storm surges that devastated much of the coast only one month ago.
In its aftermath, Sandy has sparked discussions about how communities along the Atlantic coast can prepare for the more frequent and more intense storms that may result from climate change. Experts have recommended constructing a sea wall to protect New York City at a cost of perhaps $6 billion, for example. Dune replenishment is a more modest effort to reduce the impacts of major storms.
But, the Karans’ situation demonstrates that even modest efforts to prepare for climate change may be no match for the nuances of property law.
When the Army Corps raised the dunes in front of their home, the Karans lost some of their spectacular view of the Atlantic and a small strip of land on which the new dune was constructed. Because this was a government project on private land, the government was required to pay the Karans compensation for the negative impact that the dune raising had on their property. The government offered $300 the Karans demanded $500,000.
Back when this disagreement arose, nobody predicted that Sandy would cause the devastation that it did, though all of the parties knew that improved dunes would protect beachfront property. To that end, the government argued that any harm to the Karans should be balanced against any benefit (i.e., storm protection) that they would get from the more robust dunes. Regrettably, property law does not account for even the house-saving benefits that the government provided the Karans.
Courts recognize two types of benefits that a landowner might receive from a government project like dune replenishment: (1) general benefits and (2) specific benefits. General benefits are those that the public at-large can enjoy. Specific benefits are those that are unique to only a single landowner. Specific benefits must be unique both in their degree and their nature.
For example, if the government builds a road across a landowner’s property, the public at-large may benefit from faster travel. The landowner herself, who is now very close to the new road, might benefit even more from quick access due to her proximity, but the nature of her benefit—faster travel—is the same for this landowner, her neighbors, and other travellers. In this example, the landowner’s added benefit is unique in degree but not in nature, and is thus a general rather than a specific benefit. Under property law, the government cannot subtract the landowner’s general benefit from the compensation it owes her for taking a portion of her property. On the other hand, if the government needed to drain a swamp to build the road, and by draining the swamp it made the landowner’s remaining land newly arable, then that landowner would also experience aspecific benefit, unique in its nature only to her. In this case the government could subtract the specific benefit of the new farmland from its compensation payment.
In the case of the Karans, the couple clearly benefitted from the dune project, which protected their home from Sandy’s damage. But protecting beachfront property from storm damage was exactly the general benefit that the government intended. Even if the Karans received a larger benefit than homes further inland, that difference is merely a difference of degree; it is not a specific benefit of a different nature.
When Sandy ravaged the Jersey coast, the Karans undoubtedly enjoyed an immense benefit insofar as their home is still standing and largely undamaged, but that is an advantage that the courts could not consider in this case. As such, the Karans benefit twice and get a windfall. The government has saved the Karans’ home and (if a pending jury award is upheld by the New Jersey Supreme Court), it must also pay the Karans hundreds of thousands of dollars for the privilege of saving their home.
Looking at the Karans alone, this legal doctrine seems unfair and no doubt terribly frustrating to those flooded by Sandy’s water rather than the govnerment’s money.
Looking at the problem more broadly, the limitations of property law could pose an insurmountably costly barrier to large-scale climate adaptation. At the scale of this particular dune replenishment project alone, 190 homeowners, including the Karans, received newly replenished dunes. If each of these homeowners received $375,000, the amount awarded to the Karans, the local government would need to pay an extra $71 millionover and above the millions of dollars needed to carry out the engineering and completion of the dune project itself. On the scale of the entire Atlantic and Gulf coasts (just two of many vulnerable areas), financing adaptation could quickly become untenable under the strictures of property law.
Yale Law Professor (and Interim Director of the Yale Center for Environmental Law and Policy) Doug Kysar recently authored an article titled “What Climate Change Can Do About Tort Law,” in which he argued that tort law, which so far has failed to address the massive threat of climate change, must evolve to account for the human demand for a legal framework and venue that addresses climate harms.
Before Hurricane Sandy, the Karans’ story may not have seemed so astonishing. But now, post Sandy, with the threat of climate-instigated property destruction more obvious than ever, the limits of property law have been laid bare. The legal doctrine that entitles this couple to hundreds of thousands of dollars seems increasingly inappropriate in a changing climate world.
With the Karans’ legal case now in front of the New Jersey Supreme Court, it may be time for jurists to think about what climate change can do about property law.
On December 11, 2012 CBS Evening News ran the following piece on the dune projects along the New Jersey coast.