The effects of climate change are already being felt around the world. Hotter temperatures, more-severe storms, flooding, intense droughts, wildfires and a warming and rising ocean are becoming the norm. The loss of sea ice and melting glaciers are causing ocean levels to rise faster than what was forecast even just a decade ago. The sheer scope of the expected global impact of climate change is almost unimaginable.
A brief look at the complications created by just one aspect of climate change in just one small state—Hawaii—can provide some useful perspective as the world seeks ways to mitigate these challenges.
Recognizing Hawaii’s obvious exposure, Hawaii’s legislature has been proactively evaluating and planning for anticipated sea level rise. Among other things, the legislature, through laws passed in 2014 and 2017, mandated the Hawaii Sea Level Rise Vulnerability and Adaptation Report, published in 2017. The report provided an assessment of Hawaii’s risk, implemented modeling to determine the potential exposure of each of its major islands to multiple coastal hazards and offered recommendations to reduce exposure and sensitivity to rising seas. The modeling defines the projected extent of chronic flooding, called the sea level rise exposure area, for four future scenarios: rises of a half-foot, 1.1 feet, two feet and 3.2 feet.
When the report was published, 3.2 feet of sea level rise by the year 2100 was considered the upper-end projection by the Intergovernmental Panel on Climate Change (IPCC), the United Nations’ body of leading climate scientists and government representatives. Studies done after its publication now suggest that a three-foot rise by 2100 is likely a midrange rather than high-end scenario. While the projections go to 2100, sea level rise is expected to continue for centuries thereafter.
According to the report, in Hawaii, 3.2 feet of sea level rise would:
- render more than 25,800 acres of land unusable, of which 34% is currently designated for urban use, 25% for agriculture and 40% for conservation;
- compromise or destroy more than 6,500 structures, including hotels, shopping malls, small businesses, churches, schools, community centers, houses and apartment buildings, with an estimated loss of land and structures in excess of $19 billion;
- result in more than 20,000 displaced Hawaii residents in need of new homes;
- lead to chronic flooding of more than 38 miles of major roads and the potential loss of utilities that run parallel to and beneath them; and
- place many of Hawaii’s harbors and airports at risk of chronic flooding.
The Hawaii Sea Level Rise Viewer, a project of the University of Hawaii, offers a visual representation of the anticipated effects of different levels of sea level rise. Users can access the viewer at pacioos.hawaii.edu, and it’s worth taking a minute to zoom in on Waikiki after a 3.2-foot rise—it certainly helps put into context the difficulties that lie ahead. Recognizing the potential risks identified above, the state has considered three primary adaptation strategies: accommodation, protection and managed retreat.
Rising seas are creating a legal and political quagmire.”
Accommodation entails adapting existing structures and systems to enable them to better withstand changing conditions, such as elevating structures on pillars. Protection includes both hard solutions (seawalls) and soft ones (collecting sand from another source and using it to widen a beach). Managed retreat essentially means shifting development inland from the coast either by physically moving structures or changing the restrictions and management of coastal areas. Each strategy has challenges and shortcomings, and there is no strategy that will, in isolation, suffice to address the anticipated changing condition of our shorelines.
The challenges that policymakers face with respect to implementing adaptation strategies, meanwhile, go well beyond the underlying science and engineering. Rising seas are creating a legal and political quagmire.
For example, in an attempt to implement a managed-retreat strategy, the Planning Department of Maui County proposed “Draft Special Management Area Rules” and “Draft Shoreline Rules” for the Maui Planning Commission. The draft rules, among other things, established the shoreline setback line as the current “erosion hazard line” (EHL) plus 40 feet. The EHL was based on the estimated 3.2 feet of sea level rise by the year 2100.
Using this as a starting point, the draft rules sought to impose severe restrictions on building, rebuilding or repairing any structure within the proposed shoreline setback. Had the draft rules been adopted, a beachfront home or commercial property (e.g., a resort) that was badly damaged by wind or rain might not have been permitted to be rebuilt or repaired, and owners could have been effectively forced to give up their property and retreat from the shoreline—regardless of the actual present conditions. It’s hardly surprising that the draft rules, while clearly well-intentioned, were met with significant criticism from stakeholders whose economic interests were imperiled.
Challenges to the draft rules were grounded in the view that managed retreat—which forces property owners to give up their land and creates significant legal questions—should be a last resort, implemented only if (and to the extent that) accommodation and protection strategies are insufficient. These challenges included assertions that:
- Maui County does not have the power to abandon “certified shorelines” as the starting point for shoreline regulation under state law;
- the county does not have the power to abrogate vested rights, including the right to complete development of projects that have already obtained final discretionary approval;
- the county may not take property without compensation, and where the draft rules eliminate all economically viable uses of a shoreline parcel, they would affect a total taking of the property;
- the county may not unduly restrict the maintenance and repair of lawful conforming structures;
- under state law, the county may not “amortiz[e] or phas[e out] any existing building or premises used for residential (single-family or duplex) or agricultural uses,” and the draft rules’ restrictions on the repair and maintenance of certain lawful nonconforming structures might violate that law; and
- the county may not condition the exercise of a constitutional right, and the draft rules might violate the unconstitutional conditions doctrine by requiring owners to cede their rights to commence otherwise lawful developments and repairs.
In the wake of this opposition, the draft rules have not been adopted, and Maui County is continuing its efforts to find and implement an appropriate strategy.
Shoreline communities around the world will of course face the same challenges as Hawaii in the coming decades, and one can reasonably expect that the effects of climate change will only continue to intensify. Appropriate adaptation strategies are needed to balance environmental resources, economic interests and public and private rights. This will include addressing and ameliorating primary, secondary and tertiary effects, with long-term strategies (elevating structures, beach preservation, managed retreat) fully vetted and predicated on the study of potential impacts, including, for example, land-use changes.
In Hawaii, at least, state-level leadership will surely be needed to provide direction to the various counties and to create a consistent framework, balanced approach and measured implementation. Such efforts are well underway, and scientists, politicians, businesspeople and lawyers are all actively engaged, working to be prepared for the difficulties that lie ahead.
Andrew J. Lautenbach is a director at the Honolulu law firm Starn O’Toole Marcus & Fisher. Mr. Lautenbach focuses his practice on complex commercial, real estate and land use litigation and has earned a reputation for taking an aggressive yet practical approach when helping his clients navigate high-stakes disputes. Starn O’Toole Marcus & Fisher is a leader among Hawaii’s real estate and business law firms, recognized for its expertise in real estate law, commercial transactions and complex commercial litigation in Hawaii, the U.S. mainland and internationally.
