SB 1, AB 72: Sea level rise legislation is, well, on the rise

Whether global warming resulting from human activity is actually occurring and, if so, actually matters, remain questions of ardent debate.

The truth may be that no one knows.

What is not unknown, however, is that the search for the truth, however noble, is rapidly becoming eclipsed by considerations that have catapulted these possible unknowns into big business.

California enacted on the order of a half-dozen pieces of legislation in 2021 alone pertaining to sea level rise associated with global warming.

Some of these bills address sea level rise in related contexts that are important in their own right, such as bills enacted regarding housing and infrastructure, but the cornerstones of the 2021 sea level rise enactments are Senate Bill 1, co-authored by Senators Atkins and Stern and Assemblywoman Petrie-Norris and Assembly Bill 72, also co-authored by Assemblywoman Petrie-Norris.

These two bills paint a very fair picture of where this issue is today, and where it is heading.

For those who may need but a preview, one need look no further than to Assembly Concurrent Resolution 77, adopted by the assembly (with the concurrence of the senate) on September 2, 2021, which unqualifiedly proclaimed: "The Legislature recognizes that sea level rise will continue to threaten coastal communities and infrastructure ... Sea level rise is a slow-moving threat, but it demands immediate action...."

In furtherance of the ACR 77, SB 1, passed the same day and signed by Gov. Gavin Newsom September 23, 2021, created and codified the California Sea Level Rise Mitigation and Adaptation Act of 2021, aka the "Sea Level Rise Act."

SB 1 does not refer to the ongoing political and scientific debate regarding the potential fact -- and potential significance -- of sea level rise, but rather presupposes such matters, declaring in newly enacted California Public Resources Code Section 30971(b) that "the impacts of sea level rise on the state will be significant and pervasive, and could occur as soon as within the next decade..."

SB 1 also notes that reports created by federal agencies or former federal officials or business leaders estimated that $8 billion to $10 billion of property in California would be "underwater by 2050" if sea level rise were to continue unabated.

The bill also cites to a report issued by the National Oceanic and Atmospheric Administration (now a few years old) that estimated that California's ocean-related activities and its 19 coastal counties generate $1.7 trillion or more in GDP.

For these reasons, SB 1 deemed that it was "urgent that the state enact new statutes to plan for, and anticipate, and respond to seal level rise." Cal. Code Pub. Res. Section 30971(d).

SB 1 provides that the purpose of the Sea Level Rise Act is to "establish new planning, assessment, funding, and mitigation tools for California to address and respond to sea level rise." Although the bill does not specify the particulars of those tools, it does provide that these tools will be developed based on the combined efforts of numerous local and state governmental entities, including the Natural Resources Agency, the California Environmental Protection Agency, the California Coastal Commission, the Ocean Protection Council, and the San Francisco Bay Conservation and Development Commission. Cal. Code Pub. Res. Section 30972.

Notably, Section 30972 also created the California Sea Level Rise State and Regional Support Collaborative. The collaborative, designated to reside within the Ocean Protection Council, will support the efforts of the agencies listed above, as well as other local, regional and state agencies, in developing information for further identification, assessment, planning and, where feasible, mitigation of adverse sea level rise impacts.

The collaborative also is authorized to expend up of $100 million annually to support local and regional governmental actions to carry out the bill's purposes. Cal. Code Pub. Res. Section 30973.

AB 72, passed September 7, 2021 and signed by Gov. Newsom September 28, 2021, created the Coastal Adaptation Permitting Act of 2021.

The bill requires the Natural Resources Agency to explore and report to the Legislature on options and recommendations for improving and expediting coastal adaptation projects, which are projects that are required to contain two important elements.

First, coastal adaptation projects eligible for expedited permitting and other benefits that may be conferred by the bill are required to employ "natural infrastructure," which is further defined as infrastructure reflecting an appropriate balancing of the need to reduce adverse climate change impacts, such as sea level rise, with the desire to increase the natural adaptivity of coastal resources by restoring or enhancing ecosystems.

Second, coastal adaptation projects that use natural infrastructure entitled to the bill's benefits are defined so as to disincentivize the installation or use of protective measures, including, in particular, seawalls (more recently termed "armoring"). Seawalls historically have been favored by private property owners but increasingly have the subject of disdain within the Coastal Commission and the environmental advocacy community. See 11 Lagunita, LLC v. California Coastal Commission, 58 Cal. App. 5th 904, 910 (2020) ("A seawall is a retaining wall that runs parallel to the shoreline. A seawall protects land and structures behind the seawall from erosion and flooding. However, seawalls are disfavored by the Coastal Commission, in part, because the soil behind the seawall can no longer replenish the sand on the beach through natural erosion, eventually, causing the beach to disappear").

Whether or not the threats from sea level rise impacts are real, the stakes have been determined by the Legislature to be high enough that a new course has been charted. In California, at least, the business of sea level rise mitigation is here to stay. 