A few months ago, I was flying from Rhode Island to Florida. The route took us along the southern shore of Long Island then turned south along the East Coast of America. It was a beautiful day with few clouds and bright sunshine. For the next 2½ hours I watched as seaside communities slid along beneath for more than 1,000 miles.
Americans are obsessed with living by the ocean, just as are people in most other countries around the world. Followers of Darwin believe humans are descended from sea creatures. Our blood is almost exactly the same pH and salinity as ocean water. Even those who don’t live by the ocean take vacations at the beach. We seem to have an atavistic imperative to return to the sea baked into our DNA.
The problem, of course, is sea levels are rising. CleanTechnica just reported on communities in Fiji that are relocating inland. Indonesia is spending $33 billion to relocate its capitol. But is the US worried? Apparently not. One of the first things America’s alleged president did upon taking office — other than converting the Oval Office into a replica of the Palace of Versailles — was order the architects and engineers involved in infrastructure projects funded by federal dollars to ignore the effects of climate change. Too expensive and besides, rising seas and more powerful storms are just a hoax perpetrated by the Chinese. (It is astonishing how many Americans applaud such absurd behavior.)
But even the Great And Powerful Trump can’t command the seas not to rise. There are places in America that are facing imminent danger from flooding, but not to worry, the Tramp Administration — acting through the Army Corps of Engineers — has a plan to address the problem, according to The New York Times. Here it is.
Seize all threatened properties using the power of eminent domain, pay the owners only what their property is assessed for, and bar them from seeking additional compensation in court. If anybody doesn’t want to take the deal, evict them. Send the sheriff to forcibly throw them out of their homes and put their possessions in storage. After a certain amount of time, everything they own will be auctioned off to the highest bidder. That’s how evictions work. [I know about this from my years of being a state constable and participating in many evictions. It is a pitiless process.]
The Fifth Amendment
The power of the federal government to take private property by eminent domain is found in the Fifth Amendment to the US Constitution, which says among other things, “nor shall private property be taken for public use, without just compensation.” But like all things dealing with constitutional law, what seems perfectly obvious can become the subject of fierce debate. When it comes to eminent domain, the conflicts are over the proper definition of “public use” and “just compensation.”
How do we define “public use?” Is taking land that will soon be underwater a “public use?” How about “just compensation?” Many tax authorities use assessed values that are below current market value — often significantly so. Is there any legal authority that says “just compensation” is only what the land is valued at for tax purposes? None that I am aware of.
In fact, in normal circumstances, the owner files suit to determine what the fair market value of the property is. The owner calls expert witnesses, the government calls expert witnesses, and the court decides what a fair price is. It is rare for owners to be awarded what the government says it wants to pay. Where the Corps of Engineers gets its idea that assessed value is the end of the discussion and anyone who doesn’t agree can be evicted is a bit of a mystery. If ever there was a case of government overreach, this appears to be it.
If you thought people get prickly about the government coming for their guns, just imagine what will happen when government starts coming for people’s houses. In a case of gross understatement, A.R. Siders, a professor at the University of Delaware, tells The New York Times, “It’s going to create a really big political backlash.” Gee, do you think? Nevertheless, he supports the plan because “the degree of action we’re taking needs to match the degree of the crisis.”
The Corps wants to demolish homes that are in danger of flooding. Here’s how it analyzes each situation, according to The New York Times. It estimates how much damage a house is likely to suffer in the next 50 years, then compares that to what it would cost to buy and tear down the house, plus moving expenses for the owner. If the buyout costs less, the homeowner is asked to sell for the assessed value of the home. That price is not negotiable, and neither is the offer.
So far, many local officials have balked at the plan. Miami-Dade has yet to agree to evict residents, and New Jersey has refused. In the Florida Keys, Roman Gastesi, the county administrator, said he doubted the county commission would approve it. “Eminent domain is not something that’s going to be palatable. We don’t want to kick people out of their houses.”
Gastesi is in favor of voluntary buyouts, but there is clearly a problem inherent in any such proposal. What to do with those who refuse to sell? State and local governments are facing enormous pressure to put sensible plans in place. The cost of defending the Florida coast from rising seas is estimated to equal that state’s entire annual budget for the next 10 years.
If some expenditures can be trimmed, that will leave more money that can be applied elsewhere. But must a local community spend billions to defend one vulnerable property if the owner refuses a buyout offer? The questions are exceedingly thorny ones that will require the patience of Job and the wisdom of Solomon to answer.
Historically, eminent domain has often been used as a sledge hammer to destroy communities of color, according to the US Commission on Civil Rights. Sports stadiums have often been characterized as meeting the “public purpose” criterion of the Fifth Amendment. It should be intuitively obvious to the most casual observer that people without the financial resources to hire attorneys and who lack political power are going to the first to suffer in eminent domain proceedings. America has a legal system. What it lacks is a justice system that provides an equal forum for all litigants regardless of status or economic resources.
How Do You Eat An Elephant?
Nashville, Tennessee is one city that is facing pressure from the Corps of Engineers. It has 44 homes located in a flood plain that will need to be dealt with sooner or later. “Our preference is always, ‘willing seller,’” Tom Palko, assistant director of Nashville’s storm water division tells The New York Times. The city prefers to buy homes from people who want to participate, while giving those who don’t time to change their minds.
Craig Carrington, chief of project planning for the Corps’ Nashville district, said his office wasn’t giving the city a deadline for evicting people. “We knew that this would take several years. We’re trying to eat the elephant one bite at a time.”
That seems reasonable enough, except America is a country that is now just one tweet away from being plunged into chaos. If the order comes down from on high to move people out of their homes, all hell could break lose. Just imagine the optics of the National Guard forcibly removing 98-year-old Homer Adams from his home in Nashville. If you thought the Elian Gonzalez situation was a horror show, you ain’t seen nothin’ yet.
One possible solution would be to stop doing things that exacerbate rising sea levels — like withdrawing from the Paris Climate Accords. But that would require rational thinking, something the so-called president has made abundantly clear he is totally incapable of doing.