Thermal Expansion, Melting Glaciers, and Rising Tides: The Public Trust in Mississippi

Abstract

This Article explores the impact of rising tides on title to coastal property and suggests strategies to help state and private property owners deal with the far-reaching effects of climate change in the coming years. The continued melting of glacial and polar ice caps will add to rising sea water levels. This will not only have a major impact on private property owners as title to their property will revert to the state when it becomes subject to tidal influences under the public trust doctrine. This accession of land to the state would not require compensation to the private property owner under either the United States or the Mississippi Constitution. The state could convey the property back to the private owner, but in order to do so, the legislature must authorize the conveyance while recognizing that such a conveyance would contradict the public trust doctrine. Unfortunately, naturally rising tides are but one issue coastal states will face in the upcoming years. States will have to wrangle with property issues when rising tides are only indirectly caused by rising sea levels. For example, in efforts to prevent or reduce the impact of rising sea levels some coastal communities may build seawalls and dikes which displaces sea water. The resulting question will be whether the property flooded by the water displaced by artificial methods is subject to the public trust doctrine just as property flooded as a result of climate change. In light of these increasing concerns, coastal communities should take extra care in land use planning to incorporate the likelihood of sea-level rises into their planning decisions. In addition current and interested coastal land owners should recognize that their property may gradually be encroached upon by water.