It finally happened. Monroe County has admitted publicly what many have long known: local government will not be able to save all places and properties from losses due to rising seas.
Based both on past and current experience as well as new economic data on the projected costs of raising roads in the Florida Keys, Monroe County recognized that the price tag would be too high. The estimated cost to keep one three-mile stretch of road dry from expected 2060 flooding is $181 million, or over $60 million per mile.
But which roads—and the properties that depend on them—will be saved and which will be lost? While many will share the indirect costs of losses of property and community and tourism, who will bear the direct costs of such losses? The private property owners? The county’s taxpayers? The State of Florida (again, taxpayers)?
One possible approach mentioned by the county is buyouts. While buyouts are increasingly discussed as a method of promoting “managed relocation” away from rising seas, buyouts present serious challenges as a long-term and widespread policy.
First, the concept of buyouts originally developed as way to address problems in the National Flood Insurance Program (NFIP), not as a response to rising seas. Buyouts were developed in recognition that about 1 percent of the properties insured by the NFIP represented over 30 percent of the payouts.
Since excessive losses by the NFIP are subsidized by tax dollars, this led to the argument that it would be cheaper for the federal government to buy properties that repeatedly flood rather than continue to pay insurance losses on those properties.
But sea-level rise and the challenges of the NFIP are different; buying out properties with elevated buildings that do not flood but are unlivable because they are not accessible does not, ultimately, save taxpayers money.
Second, buyouts are expensive. There is not enough money to buy out all of the properties that are or will be at risk from sea-level rise.
Third, recent research indicates that while wealthier and more highly populated counties conduct more buyouts, the buyouts occur disproportionately in areas of greater social vulnerability. This presents a social and environmental justice issue.
This leads to a fourth challenge of buyouts. The notion will grow in people’s minds that, “If that property being swallowed by the sea got a buyout at a good price, then I don’t need to worry about the future since when my property is at risk or lost, I’ll get a good price for my property as well.”
In the insurance industry, this dynamic is known as the “moral hazard” problem. As increasing numbers of property owners begin to think of the government as the insurer of their property, political and legal pressure to fulfill these expectations will grow. This directly conflicts with the knowledge that there is not enough money to buy out all of the properties at risk or that sea-level rise will put at risk.
This dynamic highlights a fifth risk of buyouts as a general policy: they represent a potentially massive redistribution of wealth from taxpayers to property owners, essentially making government—and us as taxpayers—the insurers of properties that may be lost to rising seas.
As Florida Keys Mayor Heather Carruthers told the New York Times: “[W]e’ll probably face some lawsuits.”
Yes, that is almost guaranteed. But it will not usually be the poor or disenfranchised hiring lawyers. It will be the wealthier landowners.
But courts are seldom the best way to make good public policy. Rather than waiting for lawsuits on individual cases that may result in decisions that limit their ability to balance the challenges sea-level rise presents, state and local governments should engage citizens with the hard work of asking challenging questions about how to address the inevitable losses of infrastructure and properties that sea-level rise will cause.
Local and state government need to develop policies that save what can be saved, prolong the quality of life where it can reasonably and safely be prolonged, and accept the loss of what cannot be saved while avoiding that such losses are borne entirely by the taxpayer and lead to bankrupting local governments.
The incredible complexity of developing such policies is not the job of courts. It is the responsibility of legislative bodies at the local, state, and federal levels to develop policies that balance multiple, potentially conflicting, and important interests.
And legislative bodies have options for policy development, though none will be easy or universally popular. One of the most basic policies that many have advocated for years is better notice to property owners and property purchasers of what the future may hold for impacts on properties.
Currently only a few states provide potential property purchasers notice of flood risk. However, providing notice of the current and expected impacts due to sea-level rise is not being done. Providing such information would allow potential property purchasers to make more informed decisions when buying a property.
Providing this type of information could have other benefits: it would help people understand that government cannot, and is not legally obligated to, serve as an insurer that property owners do not experience loss in the use or value of their property; it would promote the property market integrating the costs of potential risk into the pricing of property; and it could serve as a point in time where we say to property owners, “We have provided you with the best information we have about the current and future risks related to this property; if you choose to purchase this property, you are assuming responsibility for those risks, and the public/taxpayer is not liable to pay for the costs of those risks if they come to pass.”
Sea-level rise will cause extensive loss of property and money in coastal areas over time. Local, state, and federal legislative bodies urgently need to develop defensible policies that seek not only to “protect” areas from sea-level rise but also to help guide what happens and who shoulders the burden when the inevitable occurs.
Carefully considered policies will not guarantee that property owners will not file lawsuits, but they will provide a defense to lawsuits and likely provide better overall outcomes for communities, local governments, and the country than allowing courts to make such decisions on a case-by-case basis due to lawsuits about property rights.
Thomas Ruppert, Esq., Coastal Planning Specialist at the Florida Sea Grant College Program, is a licensed attorney developing legal and policy analysis for local governments on aspects of adaptive planning for sea-level rise, community resilience, and associated long-term challenges and opportunities for Florida’s coastal communities.
“The Invading Sea” is the opinion arm of the Florida Climate Reporting Network, a collaborative of news organizations across the state focusing on the threats posed by the warming climate.
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