The Battle for America's Beaches: Ancient Laws Meet Modern Climate Challenges

Amid rising sea levels and climate change, a legal principle from the Roman Empire concerning public access to beaches is fueling disputes between property owners and environmentalists about coastal management in the U.S.

If you plan a beach trip this summer, be prepared to navigate potential disputes surrounding beachfront territories. As climate change exacerbates sea level rise, a key issue arises from a principle established in Roman law.

Many beaches naturally adapt to rising tides by shifting landward. However, property owners are increasingly erecting sea walls and barriers to safeguard coastal homes, which effectively traps the beach, leading to its submergence—a phenomenon termed "coastal squeeze". This issue, once acknowledged, has accelerated due to the current climate crisis, creating urgent discussions on coastal management. Richard K. Norton, a law professor at the University of Michigan, posed a critical question at a Columbia University conference: “Are you going to save the beach house, or do you want to save the beach?”

At the heart of the debate lies a legal code from the sixth century A.D., directed by Emperor Justinian, which designated natural features, including shorelines, as public trust resources. This concept made its way into English common law and eventually into U.S. law, classifying areas below the high-tide line as public property. As a consequence, environmental advocates argue against private structures that threaten public beach access, while property owners seek compensation for potential losses from such regulations.

The situation reflects a growing impasse across coastal areas, with legal conflicts raging from Hawaii to South Carolina. Jeremy Talcott, an attorney with the Pacific Legal Foundation, noted a shared desire among many to preserve coastal properties, yet acknowledged a lack of commitment to fund those protections.

The dynamics of coastal geology complicate matters, as barriers traditionally cause what is referred to as passive erosion, where rising tides scramble for an escape around static defenses, harming adjacent beaches. Nearly one-third of the world's sandy beaches are currently fortified, and projections suggest many could face severe loss by 2100.

Communities relying on beach tourism are attempting to navigate this issue through bans on coastal armor and restrictions on development near the shoreline. Yet, enforcing compliance is challenging, often inviting legal disputes when properties initially compliant succumb to the forces of erosion.

Today’s legal contests echo those of centuries past, where rights to public access led to conflicts over private property. Currently, South Carolina’s courts are addressing a case concerning fines imposed on homeowners who built an “unpermitted” sea wall, amid fears of private property confiscation.

Meanwhile, coastal towns like Malibu, California, are facing similar challenges as wildfire recovery intersects with public trust laws, indicating the complexity of this issue across various environmental shifts.

As small-scale projects to protect shorelines proliferate, they exemplify the broader struggle at play on the nation's beaches. In Matunuck, Rhode Island, the construction of protective walls has led to increasingly diminished beach areas, a shift that long-time residents have reluctantly accepted.

The rich history of America's beaches now stands at a crossroads of legal, environmental, and social interests, urgently pleading for a thoughtful solution amid the tides of change.