By Jay Austin, Senior Attorney, Environmental Law Institute; Director, Endangered Environmental Laws Program
This fall's Supreme Court calendar features only one environmental law case - a bit of a relief compared with last term, when the Court heard five environmental appeals and the "green" side lost all five. Yet that case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, is a sleeper with the potential to reshape both the Court's Fifth Amendment takings jurisprudence and its traditional deference to state courts' interpretation of state common law.
What's wrong with "beach renourishment," the innocuous-sounding practice of replenishing sand along storm-eroded coastline, as authorized by Florida statute and carried out at great public expense? According to petitioners, it deprived their property of its "oceanfront" character, by widening the public side of the beach and replacing the traditional dynamic boundary that tracked the mean high water mark with a new, fixed line. They sued in state court - first to enjoin the renourishment program, then for monetary compensation, claiming a taking of their property rights.
The Florida Supreme Court disagreed. In a lengthy opinion that cites Florida case law and authorities dating back to Blackstone, it held that "under Florida common law, there is no independent right of contact with the water"; and that the statute adequately preserves the owners' other rights, including their right of access to the beach and the water. Absent an identifiable lost property right, there could be no taking and no compensation owed. Two Florida justices dissented, and petitioners appealed to the U.S. Supreme Court.