LEGAL ASPECTS OF COASTAL CHANGE

Coastal change is unlikely to require new law but properly dealing with its effects and planning our response to them will require more than just a good understanding of present law. Statutes rest on fundamental - but often unstated - societal assumptions favoring some outcomes and denying others. For example, Western societies presume land should remain in commerce and always be productive.

Virtually all of the major cases and controversies concerning water and/or coastal issues arising in Louisiana in recent years - levee and flood wall failures during Katrina, land loss from E & P (exploration and production) canals, diversions affecting oyster beds, homeowners insurance covering flood losses - have been resolved by applying existing law. These range from laws only decades old (the Flood Act of 1928) to modern text based upon Roman law going back over 2,000 years. The on-going BP spill is governed by a current law, the Oil Pollution Act of 1990.

Unfortunately, much of the general public either does not understand the basic principles of land use and tort or perhaps simply wishes for different outcomes despite existing laws. The pending regulatory scheme for carbon emissions is particularly tied to coastal land loss through the Anthropogenic Climate Change ("global warming") thesis. In fact, the thicket of administrative law is even denser and more complex that basic statutes, yet it, too, is based on law decades old, the Administrative Practices Act of 1946.

Law as an institution has never attempted to "control nature" per se but it most assuredly attempts to specify and control who gains and who loses - and why - when a river changes course, when new land forms at the beach, and when a dispute breaks out as to "what is a beach?" and "who owns it?"

I believe a general overview of the major cases and an explanation of why they turned out as they did will better enable coastal planners to find - and stay within - the realistic limits of what can and cannot be accomplished within the framework of our existing laws. Moreover, if American society does determine a new direction in coastal programs is needed, a fuller understanding of current law will likely allow better choices to be consciously made in lieu of muddling through, or, worse repeated exercises of trial and error.