At one time in American life, a day at the beach was open to anyone. Over the past fifty years, however, that expectation has been slowly eroded and parceled into expensive, privately owned beachfront lots. As Marquette professor Andrew W. Kahrl writes in The New York Times “…up and down the Eastern Seaboard, beachfront property owners, wealthy municipalities and private homeowners’ associations threw up a variety of physical and legal barriers designed to ensure the exclusivity — and marketability — of the beach. These measures were not only antisocial but also environmentally destructive.”
The historic bulwark against the enclosure of coastal lands has been the public trust doctrine, a legal principle with deep roots in Roman law that was eventually incorporated into British and then American law. However, U.S. state courts have generally given the public trust doctrine very different interpretations, and state legislatures have enacted different standards of public access to and ecological protection of coastal lands.
As a result, states like California and Texas have remarkably open access to all beaches while eastern seaboard states like Connecticut and New Jersey have fairly restrictive rules. Such states apply the public trust doctrine only to fishing and navigation, for example. It is not widely appreciated that this is not just unfair to people who can't afford to buy or rent their own beach house, it’s an environmental danger.
“By increasing the value of shoreline property and encouraging rampant development, the trend toward privatizing formerly public space has contributed in no small measure to the damage storms like Hurricane Sandy inflict.Tidal lands that soaked up floodwaters were drained and developed. Jetties, bulkheads and sea walls were erected, hastening erosion. And sand dunes — which block rising waters but also profitable ocean views – were bulldozed.”
It’s really time for the U.S. Congress to pass a uniform, commons-friendly standard for the public trust doctrine that applies to all states. Such legislation should emulate the goal set by two Texas legislators in the U.S. Congress in 1969, Robert Eckhardt and Raph Yarborough. They wanted to outlaw “any obstruction, barrier, or restraint of any nature which interferes with the free and unrestricted right of the public ... to enter, leave, cross, or use as a common the public beaches.” That law never passed, unfortunately.
Social fairness, environmental protection and taxpayer savings on disaster-related expenses: that’s a winning combination. Why do we continue to tolerate enclosures of coastal land that work against all three?
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