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Climate Change and Regulatory Takings in Coastal Hawai'i

The Center for Island Climate Adaptation and Policy (“ICAP”) at the University of Hawai‘i Sea Grant College Program has prepared this paper to examine the interactions among climate change, the regulation of shoreline development in Hawai‘i, and Constitutional law regarding unpermitted takings of private property for public benefit. The use and development of coastal property in Hawai‘i is governed by a complex array of laws and regulations addressing a range of concerns, from protecting human health and safety from life-threatening natural hazards to preserving public access and scenic view planes. A critical aspect of the interaction between climate change and the law is the requirement under the U.S. and Hawai‘i Constitutions that the government compensate private property owners for unpermitted “takings” of their properties.

These two foundational issues converge on Hawai‘i’s shorelines, where government officials and the owners of coastal properties must grapple with the enforcement of regulations in the context of unprecedented changes to the climate and natural environment. Government officials must enforce existing laws and anticipate potential new laws as climate change continues to impact coastal areas. Owners of coastal properties, including valued homes and scenic lands, may resist or oppose government regulation of development activities on the grounds that enforcement violates the Constitutional takings prohibition. A better understanding of takings law and how it can be expected to interact with coastal development laws in Hawai‘i may help government officials, private landowners, and members of the public to assess and evaluate the viability of potential takings claims and thereby minimize the time and expense associated with legal disputes.

Climate Change and Regulatory Takings in Coastal Hawai'i
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Publication Date
August 2011