Faced with potentially staggering human and economic costs, governments around the world are beginning to plan and implement adaptive measures designed to stem the effects of climate change. Some of these adaptations will likely benefit certain property owners and communities at the expense of others. For example, seawalls intended to save valuable parcels of land from sea-level rise could wind up forcing seawater onto neighboring parcels that would not have flooded otherwise. One day in the not-too-distant future, societies will have to grapple with the question of whether the government is responsible for harms it causes in its attempts to save livelihoods and land threatened by climate change. This Note seeks to address that question by analyzing the extent to which a government in the United States would face takings liability if its adaptive measures to address sea-level rise-one of the most salient property harms that will result from climate change-save certain parcels but harm others. Despite a long line of case law under which the government is liable for a taking when it intentionally floods private property, this Note concludes that, under certain circumstances, climate change adaptations could present the type of emergency situation that American courts have frequently held exempts the government from takings liability. This Note nonetheless argues that broader government takings liability may lead to more efficient and equitable climate change adaptation. It also considers some undesirable outcomes that could result from broader government takings liability and discusses potential solutions to minimize those problems.
Patashnik, J
THE TROLLEY PROBLEM OF CLIMATE CHANGE: SHOULD GOVERNMENTS FACE TAKINGS LIABILITY IF ADAPTIVE STRATEGIES CAUSE PROPERTY DAMAGE?
Columbia Law Review