Should NJ Use Eminent Domain to Take Coastal Properties Threatened by Sea-Level Rise?

Some analysts say compulsory purchases of the most vulnerable homes may be needed
Credit: US Fish & Wildlife Service from Flickr
At the Jersey Shore after Superstorm Sandy

Is it time for states like New Jersey to start using their powers of eminent domain to take coastal properties that are most vulnerable to sea-level rise?

It’s a question being asked by environmentalists and policy experts in view of the increasing threat to coastal areas from rising seas and bigger storms that come with climate change, and growing concern that voluntary buyout programs like New Jersey’s Blue Acres are dwarfed by the scale of the challenge.

While the state Department of Environmental Protection last year marked the program’s 700th purchase of flood-prone properties, that number is too small, and the process of acquisition and demolition too slow to keep up with the accelerating pace of sea-level rise, some analysts say.

That raises the question of whether coastal states should be making compulsory purchases of the most vulnerable properties to save their owners from inevitable flooding, and to save taxpayer dollars that are increasingly being used to rebuild roads or power lines after storms take them out.

The controversial and emotionally fraught use of eminent domain is already part of the buyout policy at the U.S. Army Corps of Engineers, which builds up coastal features like dunes and beaches, and has been studying ways of defending New Jersey’s back bays and other areas of the Northeastern coast.

The federal agency said in 2015 that it would only participate in programs to acquire, relocate and permanently evacuate people from coastal properties if the programs include the option to use eminent domain.

The shadow of climate change

Now, according to The New York Times, the Corps is pressing New Jersey and other states to commit to using eminent domain for acquiring threatened coastal properties, or face the possible loss of federal funds to fight climate change.

New Jersey has refused the Corps’ proposal, the story said. Neither the DEP, nor the office of Gov. Phil Murphy, responded to requests for comment.

Gene Pawlik, spokesman for the agency, declined to confirm or deny the Times report, but said the policy should only be used if other purchase options have failed.

“USACE recognizes the impact that the use of eminent domain can have on people and their communities,” Pawlik said in a statement. “Eminent domain (condemnation) procedures should only be used when direct purchase negotiations with land owners fail to reach an agreement on price or when land title matters prevent closing the transaction, and the planned project cannot be completed for the greater public benefit without acquisition of those properties.”

Despite the Corps’ adoption of eminent domain as a tool for fighting the effects of climate change, it has halted work on a multiyear study of ways to defend parts of the New York-New Jersey Harbor and New Jersey’s back bays from sea-level rise, citing funding cuts, officials confirmed in late February.

Buyout programs inadequate?

Even though eminent domain may be a last resort for states seeking to remove coastal properties, it is likely to be needed sometimes, especially if an existing buyout program like Blue Acres is not equal to the task, said Tim Dillingham, executive director of the New Jersey-based American Littoral Society.

“At times, it’s going to be a tool that’s going to have to be used, however reluctantly,” he said, referring to eminent domain. “It may get to that if the goal is to take those places out of harm’s way.”

The public is on the hook for rebuilding in places that currently flood and are likely to become much more vulnerable in future, and it’s in the public’s interest to reduce those costs as well as shielding owners from harm, Dillingham said. “Those are the grounds on which the government has used eminent domain for years,” he said.

The Murphy administration is currently addressing where coastal development is allowed as part of a wide-ranging review of environmental regulations, called NJ Protecting Against Climate Threats, to implement the governor’s recent Executive Order 100 on mitigating and adapting to climate change.

Last year, a study by the Princeton-based research group Climate Central and the national real estate firm Zillow found that about 3,100 New Jersey homes were built between 2009 and 2017 in areas that are expected to flood once a year by 2050, up from an estimate of about 2,700 homes at the end of 2018.

More new homes built in risk zone after Sandy

In a sign that pressure to build or rebuild at the Shore continues despite the devastation caused by Superstorm Sandy in 2012, the study also showed that the new homes were added in a so-called risk zone at almost three times the rate in safer areas.

Pete Kasabach, executive director of the nonprofit advocacy group New Jersey Future, argued that policymakers should retain eminent domain as an option for defending the coast but only to purchase damaged properties after a storm rather than to force people from their homes before such an event.

“You don’t use eminent domain lightly but I also wouldn’t remove it as a tool,” he said. “I don’t think it’s appropriate to take people’s houses and knock them down but it may be useful after a storm damages property.”

But Jeff Tittel, director of the New Jersey Sierra Club, defended the Army Corps’ reported promotion of eminent domain for property purchase, saying that the urgency of the climate crisis justifies the compulsory purchase of some properties if their owners are unwilling to sell freely. By removing vulnerable homes, the state can create natural areas like wetlands that will help to defend the coast from rising seas, he said.

“We have places that are going under water on a regular basis, and the people who stay are really being selfish because they will need services even if they are the only house left and they are putting a burden on first responders, and they are putting a burden on taxpayers who will help pay for the reconstruction,” he said. “We have a system that has to change given the frequency of storms and given how chronic sea-level rise is becoming.”

According to the latest forecasts by the Rutgers Climate Institute, sea levels at the Jersey Shore will rise by up to 2.1 feet between 2000 and 2050 regardless of any cuts in global carbon emissions. With unchecked growth in fossil fuel use, the rise would extend to more than 6 feet by the end of the century, the institute said in November.

That scenario would overwhelm the Blue Acres program which has proven itself too slow to remove coastal properties from harm’s way, Tittel said. “A voluntary program in a climate emergency is too little, too late,” he said.

Still, if coastal states like New Jersey begin the compulsory purchase of vulnerable properties, they can expect pushback from communities that have always resisted the idea of retreat from the coastline, said A.R. Siders, a University of Delaware professor who studies buyouts and other aspects of climate-adaptation policy.

“Towns don’t like to be seen to be losing property,” she said. “So switching from that political rhetoric to a rhetoric that says ‘these areas are dangerous and we’re going to step back’ and may even require people to step back, is a big shift.

“Eminent domain has always been an option for these local governments, and they have chosen not to use it because it is so politically controversial. So now, pushing communities to use it will bring back all of those controversies.”