They Won’t Stop Until They Own it All
Beachfront owners’ and Libertarian activists’ fight to end coastal land-use regulations
America’s coasts are in danger of becoming the latest casualty in the one-percent’s relentless quest to own the entire planet, and in capitalism’s inexorable push to commodify everything.
At the present moment, the U.S. Supreme Court is weighing whether to hear an appeal filed by Silicon Valley billionaire Vinod Khosla that challenges the constitutionality of the California Coastal Commission, the environmental regulatory agency responsible for restricting development and ensuring public access rights along the state’s coastline.
The issue in Martins Beach v. Surfrider Foundation is whether Khosla can block access to a road leading to Martins Beach — a magnet for surfers and beachgoers for generations — that cuts across his 89-acre seaside estate. California law expressly prohibits coastal property owners from restricting public beach access without a permit, which the state has refused to issue to Khosla.
But while Khosla is fighting to have this picturesque stretch of the Pacific coast to himself, the legal team he has assembled, led by former Bush administration solicitor general Paul Clement, are after bigger game. They seek no less than the complete dismantling of land-use regulations designed to protect natural resources, limit development, and defend public space from private interests.
Californians — and the Pacific coast — have faced this threat before. Before 1972, private interests ruled the state’s coastline, with disastrous results. Across southern California, developers had lined the shore with high-rise condos and gated communities, destroying thousands of estuaries and effectively privatizing miles of beachfront previously open to the public. In Santa Barbara, an explosion of an off-shore oil drilling platform spilled over 80,000 barrels of crude oil into the city’s channel in 1969, at the time the largest oil spill in U.S. history. Along the central coast, power companies situated massive plants along once-pristine shores. In northern California, local governments were liberally granting permits for homes located dangerously close to the sea. The final straw, for many, came in 1968, when Sonoma County supervisors permitted a new planned development called Sea Ranch to close off 10 miles of a beloved stretch of coastline to the public.
In response to these outrages, over 100 different coastal access groups formed across California. These groups later formed the Coastal Alliance and, in 1972, succeeded in getting on the ballot a proposal to create a new state agency empowered to regulate land use and enforce public access in the state’s coastline. In spite of a massive advertising campaign funded by the state’s oil and power companies and homebuilders, voters easily approved Proposition 20, which established the California Coastal Commission. Four years later, state lawmakers made the agency permanent. Since then, the coastal commission has sought to carry out its dual mission of protecting coastal habitats and facilitating public access, by preventing environmentally reckless forms of development, creating public easements, and forcing some of the state’s wealthiest residents and most exclusive gated communities to open the beaches fronting their seaside mansions to the public. As a result, the California coast today is one of the most open and least developed in the nation.
That stands in contrast to other coastal states that lack such regulatory powers. Take Connecticut, for example, where local governments’ and homeowners’ interests have long prevailed. As a result, most of the state’s shoreline is in the hands of a few, and the state’s capacity to address the effects of sea level rise remains weak. Or take Florida, where the governor told state workers not to utter the words “climate change.” Earlier this year, lawmakers in Florida voted to block local governments from passing any ordinance that ensures public access along privately-owned beaches. The move came after wealthy homeowners along the Florida panhandle, including former governor and T.V. commentator Mike Huckabee, complained of the hoi polloi walking in front of their homes.
Ironically, many of the people who are leading the fight to privatize beaches fashion themselves as friends of the environment. Khosla, for example, promotes “green technology” and supports many environmental causes. In this case, he argues that because he paid so much for the property, he is best positioned to protect its integrity. Like many advocates of this free-market approach to coastal land use, Khosla and his lawyers invoke the “tragedy of the commons” thesis to argue that privatizing beaches and restricting access to the few is good for the environment. “[R]especting the property rights of beachfront landowners — even the billionaires,” Reed Watson of the free-market environmental think tank Property and Environment Research Center claims, “is the best way to prevent congestion, maximize the quality of beach experiences and ensure long-term beach conservation.”
But that’s not how it works in practice. Beachfront homeowners, private developers, and exclusive communities have inflicted grave and irreversible harm to coastal environments, all in the interest of protecting and enhancing their property. To keep out the public, they’ve built jetties, groins, and other barriers and obstructions. They’ve re-engineered shorelines in order to enhance its most attractive — and profitable — features, heedless of the long-term financial and environmental costs. And, as the Khosla case shows, they have consistently worked to weaken if not destroy the very agencies tasked with protecting the environment.
In their fight against land use regulations, wealthy beachfront property owners have gained some powerful allies. For decades, libertarian legal advocacy groups like the Pacific Legal Foundation (which today receives generous support from the Koch brothers) have waged an all-out assault on laws that prevent property owners from exploiting natural resources with impunity or shackle them with any social obligations, such as providing passageways to public lands. Because the state has an interest in protecting coastal areas for social and environmental reasons, libertarian legal activists have singled out these regulations for attack, hoping to score a two-for-one victory against the public and the planet.
While cases that challenge coastal regulations have consistently lost at the state level, they fared much better at the Supreme Court. In 1987, lawyers for the Pacific Legal Foundation successfully argued in the case of Nollan v. California Coastal Commission that the CCC’s attempt to force a beachfront homeowner to provide a public easement to the beach in exchange for a building permit (known as an “exaction”) constituted a violation of the takings clause of the Fifth Amendment. Four years later the Supreme Court ruled in favor of real estate developer David Lucas, who had sued the state of South Carolina’s coastal commission over its enforcement of a statute that prohibited him from building houses on two oceanfront lots. (The lots in question were located dangerously close to the sea; as recently as 1968, both had been entirely submerged offshore.) Lucas claimed that the state’s environmental interests had robbed his property of potential value, and thus constituted a “regulatory taking” by the government. The Court offered conditional support for that argument.
The Lucas decision, supporters and opponents agree, has had a chilling effect on states’ efforts to protect environmental resources from the exploitative excesses of wealthy and capitalist developers. Should the Supreme Court hear the case and rule in favor of Khosla, that chill could very well deepen into a permanent freeze. One legal expert predicted a Supreme Court ruling “would have a … sweeping and catalytic effect on public access law and property rights more generally.”
That is precisely what many of Khosla’s advocates hope. Rather than a fragile and dynamic environment whose enjoyment is all citizens’ birthright and whose protection is our collective responsibility, libertarian activists see our coastlines as merely another commodity whose monetary value has yet to be tapped, and whose use and accessibility should be subject to market forces. Once the market takes over, the public interest goes away, and along with it, our ability to govern land use in accordance with public needs and changing environmental conditions. Billionaires will be able to keep the masses from spoiling their view. Developers will be free to maximize the profit-making potential of beachfront real estate. The public will become estranged from the outdoor world, and the environment will suffer.
The stakes in this case could not be higher. Should Khosla prevail, America’s coasts will not only become more exclusive and less accessible. They will be more prone to over-development and environmental damage, and states will be less equipped to respond to the effects of climate change. As rising sea levels threaten to inundate coastlines around the world, governments will need (at a bare minimum) the regulatory powers California possesses to prevent future development and manage our inevitable retreat from submerged areas. In the more immediate term, we need state and federal agencies to defend the public’s interest — and protect public property — from the one-percent. It seems they will stop at nothing in claiming all of the desirable land on the planet for themselves.
Andrew W. Kahrl is associate professor of History and African-American Studies at the University of Virginia and is the author of Free the Beaches: The Story of Ned Coll and the Battle for America’s Most Exclusive Shoreline (Yale University Press, 2018)