Urban Lawyer

A Pragmatic Proposition: Regionally Planned Costal TDRs in Light of Rising Seas

by Daniel J. Depasquale

Daniel J. Depasquale has a B.A., Stony Brook University (2011); M.A., Stony Brook University (2012); J.D. Candidate, Western New England University, School of Law (2016).

[S]cience, accumulated and reviewed over decades, tells us that our planet is changing in ways that will have profound impacts on all of humankind. . . . [T]hose who are already feeling the effects of climate change don’t have time to deny it — they’re busy dealing with it.1

Climate Change is upon us, and there is ample research displaying that it is here to stay.2 Current research points to dramatic increases in greenhouse gases in the atmosphere since 1750, making it likely that the climate changes seen today are caused mostly by past and present human activity.3 More specifically, “[w]arming of the climate system is unequivocal, and since the 1950s, many of the observed changes are unprecedented over decades to millennia. The atmosphere and ocean have warmed, the amounts of snow and ice have diminished, sea level has risen, and the concentrations of greenhouse gases have increased.”4 Nationally, sea levels will rise, as we witness continued inundation of United States coastal communities that will threaten the environment, economies, and the overall way of life in these areas.5 The effects are visibly evident in today’s world, as sea level has risen eight inches since 1880 and is projected to rise a staggering one to four feet more by the year 2100.6 These changes are significant because over half of the citizens in the United States live in coastal communities, totaling 164 million people.7 Moreover, it is projected that there will be an additional 1.2 million people added in coastal zones in each successive year.8

The American northeast, with its 64 million people, is one of the most developed regions in the world.9 Cities and towns within the northeast have been dealing with a marked increase in substantial storms, heat waves, and coastal flooding, with no signs of slowing down.10 Further, resources such as water supply and potential evacuation routes are susceptible to increased flooding, sea level rise, and storm surges, as well as other potential results due to impending climatic changes.11

Many of these impacts of climate change, such as sea level rise and extinction of species, are irreversible.12 Where these changes will lead in the future is a matter of projection,13 as scientific research can only fully comprehend the effects that are taking place at the current time.14 What is certain, however, is that the United States — and the international community for that matter — must prepare for a global future that will be startlingly distinguishable from what we experience today.

While action is being taken both federally and by states, climate change is a global phenomenon that we as a species have created through years of emissions into the atmosphere.15 With this in mind, it is uncertain whether actions taken today have the propensity to prevent the inevitability of increased climate change and rising seas.16 This uncertainty could and should lead to adaptations and better planning of communities in order to shield them from the numerous side effects of climate change — sea level rise in particular.17 It has recently been proposed that transferable development rights programs (“TDR programs” or “TDRs”) “can and should be used to restrict coastal development in areas that are likely to be repeatedly flooded, eroded, or submerged as a result of rising sea levels and an increased frequency of intense coastal storms.”18 This proposition is the centerpiece that this article seeks to further analyze and build upon.

This article posits that regionally planned transferable development rights programs can be effectively utilized in order to prepare for the inevitability of climate change and sea level rise. Part I analyzes the possible ways that regions, states, and municipalities can prepare for sea level rise. Part II outlines what TDR programs are and how they are organized, while also explicating the numerous pros and cons of TDRs. Part III traces the history of TDR programs, encompassing what TDR programs have previously been utilized to accomplish. It then addresses what a coastal sea level rise TDR would look like, compared to the usual TDR formula. Part IV evaluates the legality of mandatory TDR programs versus those that are voluntary, while comparing the pros and cons of each type of TDR program. Additionally, it addresses how the use of an effective federal flood insurance policy could drive voluntary programs to become more successful. Lastly, Part V posits why a regional approach to TDR programs is the best method. Part V also presents in-depth analyses into three current regional programs, with suggestions for future improvements of regional TDR programs in general.

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