A Modest Proposal: Install Permanent Blue Lines Physically Along the Coast
There’s been quite a hullaballoo nationally and regionally on this the first anniversary of Superstorm Sandy. Sandy, you will recall, pummeled the coast of New Jersey and New York for days last October, killing an estimated 285 people, destroying or damaging 650,000 homes and 200,000 businesses, leaving 8,600,000 homes and businesses without power, gas, or water, and shutting down New York City’s subway system for days, crippling the city. The estimated cost of Sandy was $65 billion dollars.
Monmouth University held an excellent online symposium about the response to Sandy on October 29, the anniversary of Sandy’s landfall. Here are youtubes of the morning and afternoon sessions.
Among the notable speakers was Coast Guard Admiral Thad Allen, who directed the national response to hurricanes Katrina and Rita, served as the National Incident Commander in the BP Deepwater Horizon blowout, and was appointed by New York Governor Cuomo to co-chair a task force on New York State’s responses to future weather-related disasters. Another notable was Christine Todd Whitman, former Governor of New Jersey and former Administrator of the United States Environmental Protection Agency. She resigned as I recall over differences with the George W. Bush administration over whether climate change was going to be a serious problem.
A pollster from and institute at Monmouth University reported that only about half the folks who were supposed to evacuate the New Jersey shore did so; and that when polled later, about the same number said they would not evacuate the next time.
And there surely will be a next time. Another speaker suggested that even a four foot sea level rise by 2100, somewhere in the mid-range of credible estimates, would drastically increase the frequency of severe floods. He offered the analogy of a basketball court. Raise the floor a few inches and you get more dunks. Raise the floor a couple of feet and all you get is dunks. Add to that that many major cities are less than five feet above sea level now – among them Hoboken and Atlantic City here in New Jersey – and that spells trouble with a capital T.
And yet there is this persistent insistence on retaking the land, rebuilding bigger and better, standing up to the storm. New Jersey Governor Chris Christie certainly voiced that view right after Sandy – in contrast to New York Governor Andrew Cuomo, who allowed that perhaps there were some spots where we really shouldn’t rebuild. Christie may be expressing his opinion, but he is also certainly responding to almost irresistible political pressure, and he is using his image as the post-Sandy rebuilder person for all it is worth in his campaign for reelection. This is about rescuing people’s homes, their lives, their memories; and it is about preserving the identity of the Jersey Shore, and therefore of the state as a whole. No amount of yakking by experts with dismal news, or perusing web maps with simulations of sea level rise, is going to change the minds of most of those who treat development on barrier islands and low-lying mainland areas as though they were on reliably dry land. Thus we seem doomed repeat a cycle of stupid land use, response, recovery, and rebuilding, subsidized over and over by the general public and costing many lives, no matter what experts say about this folly.
I suggested a novel maneuver in a paper a few years back, at a symposium on Balancing Public and Private Rights in the Coastal Zone in an Era of Sea Level Rise, at the University of South Carolina in 2007. Some folks thought I wasn’t serious, but I was. The resulting article recently appeared as a principal reading in Josh Eagle’s new Coastal Law casebook (Aspen). Eagle called it an “unconventional approach” to shifting risk perception as to sea level rise and unwise coastal land use.
The proposal is to paint a permanent blue line on the ground where the water came up to. Not temporary, not the kind of symbolic environmental ceremony that some groups in coastal cities like Seattle and Honolulu have engaged in. And not a projected line at 1 meter above sea level, or at 7 meters above sea level (the level water would come up to if the Greenland ice cap were to melt). Those are the levels being used in various on land and online scenarios and projects. See, e.g., Blue Line Project, http://www.bluelineproject.org/about.php. A blue line will be most persuasive if it is as factually incontrovertible as possible, to silence the climate change skeptics a bit. Paint a line just there, where the water actually came up to.
Such a line would catch the eye of the inhabitants of all those unwisely-located communities at various moments in their daily lives, reminding them how precarious their purchase on the land is. The nowadays quite informative web sites about sea level rise are not likely to be visited by those who are skeptical or in deep denial about flood risk and sea level rise. A line on the ground is a much more visceral reminder of the risk than any number of webpages or flood maps. To be sure, developing and conveying sophisticated information about flood risk in light of sea level rise is essential, and these days will probably convince sophisticated decision makers – whether those be municipalities and other governmental entities or large corporate planners. But to the average Joe or Jill who votes, the call of the home – or of the second home, in the case of much of the Jersey Shore – is so powerful that these information and decision making tools just don’t have any effect. Arguably, painting a physical line on the ground where the water came up to might.
Have a look at the recent outcry over the increase in flood insurance rates. Over the years, the government has been unsuccessful in getting rates up to actuarial levels. And although there are problems with the recently issued FEMA flood zone maps – in New Jersey, they don’t reflect the post-Sandy land forms – they do bring in many, many additional properties, and they impose design obligations, and sometimes extraordinarily costly insurance on non-cooperators. And what happens? Michael Grimm, a Representative from Staten Island, pledges a bill to hold back the rates for four year. And his reaction on Capitol Hill is joined by an outcry from around the country – Louisiana as well as New York and New Jersey – that the rates are unaffordable and therefore unjust to those who have lived their lives in these places. Well, the fact is that living in some of these places, given the existing risk and the hugely increased risk caused by climate change, is unaffordable. Shore dwellers are using political pressure to compel subsidies for their risky land use decisions from those who live far away. It’s not an easy question.
Two kinds of movers might initiate physical blue line projects locally. One is environmentally conscious private property owners concerned about unwise land use on our coasts in light of sea level rise. They could, I suspect, not only install blue lines themselves; they could secure them in the form of perpetual easements to private environmental conservancies or to local governments in perpetuity, like conservation easements (at least in many states), so that the blue line once installed could not be erased.
A second type of initiator might well be local governments. Just as state and local governments are leading the way in some aspects of response to climate change and sea level rise, they could easily install blue lines on their own oceanfront property.
The truly serious municipality or county could impose blue line easements on privately-owned property as a condition of shore building permits. The blue line certainly has a nexus with the concern for disaster caused by increased building; and may well have some rough proportionality.
In any event, there is always the possibility of compelling blue line easements by the use of eminent domain. There is a permanent physical invasion involved, so probably some small compensation would have to be paid. You may recall that in the Loretto case the eventual compensation paid the property owner for the physical invasion of installing a cable box on the roof of her apartment building was one dollar. There’s no physical damage from a blue line, and all it does is to make physical and visible a fact about the property that is indisputable and that is ascertainable from other sources. Surely that information is relevant to any future sale of the property. How much should the imposition of that kind of easement cost? To be sure, the property value of land on which a blue line is installed may go down because the line so effectively conveys the message of future flood risk. But that raises an especially interesting question. Suppose the market value of property is based on a widespread misperception that an ever-present and increasing risk of flood is much less than it actually is. Should a court, for purposes of just compensation, rely on a fair market value determination warped by collective delusion? Truth is a defense to defamation. Why shouldn’t the truth of a blue line be a defense to an inflated claim for compensation for the consequences of a blue line easement?
My article on blue line projects can be found here. Marc R. Poirier, A Very Clear Blue Line: Behavioral Economics, Public Choice, Public Art and Sea Level Rise, 16 Southeastern Envt’l L.J. 83 (2008).