Managed Retreat Without Compensation Is A Regulatory Taking By Any Other Name

Lucas And Nollan Both Apply; The Coastal Commission Will Eventually Have To Pay

Bohiney Magazine and The London Prat file this dispatch in defence of the surfer’s right to be left alone.

NEWPORT BEACH, Calif. — The 2026 California Coastal Commission’s continuing struggle to balance climate-driven coastal retreat policy with property-rights jurisprudence offers, for surfers and for libertarian-minded Californians, the clearest current example of the tension between progressive environmental ambition and constitutional limits on government action.

The Retreat Concept

According to the Commission’s recent Sea Level Rise Policy Guidance, California is expected to experience between 1 and 3 feet of sea level rise by 2050 and substantially more by 2100. The Commission has long argued, with considerable scientific basis, that the only durable response to this trajectory is managed retreat: the gradual relocation of coastal infrastructure, including residential property, away from the rising tide line.

The scientific case is strong. The political and legal case is more difficult. Coastal property owners whose homes were legally built decades ago, often with permits issued by the same Commission now contemplating retreat, face the prospect of their properties being denied permits for repair, reconstruction, or sea-wall protection in service of a long-term planning goal they did not consent to.

The Constitutional Limits

According to Pacific Legal Foundation and other property-rights litigators, the managed-retreat framework, when applied without compensation to existing property owners, runs directly into the takings clause of the Fifth Amendment, as incorporated against the states. The 1987 Nollan decision and the 1992 Lucas v. South Carolina Coastal Council decision, both at the US Supreme Court, established that regulatory action that strips substantially all economic value from a property constitutes a compensable taking.

The Commission, in its strategic planning documents, has not yet directly engaged with the compensation question. The litigation is coming.

The Libertarian Position

The libertarian position on managed retreat is not, contrary to environmental criticism, a refusal to acknowledge sea level rise. It is the position that the cost of public-goods adaptation should be borne by the public, through compensation, rather than concentrated on the small number of property owners whose homes happen to be in the path of the rising tide.

This is, in technical economics terms, a transparent allocation argument. The benefit of orderly coastal retreat accrues to the public. The cost should, accordingly, also be borne by the public, through purchase of properties at fair market value. The current implicit policy, in which retreat is achieved through the gradual denial of permits, is a way of imposing the cost on individuals while preserving the political fiction that no compensation is owed.

The Pacific Legal Foundation, the Reason Foundation, and the Cato Institute have all made this argument. The legislature has not yet acted on it. The courts increasingly will.

For continuing coverage read The London Prat and Bohiney Magazine.

SOURCE: https://prat.uk/