ABSTRACT
Climate change confronts property owners and governmental officials with a difficult choice. Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts are forcing policymakers to consider four adaptation tools: resisting climate impacts (for example, by building sea walls and armoring the shoreline), accommodating those impacts (for example, by elevating existing structures), managed retreat (systematically moving people out of harm’s way), and unmanaged retreat (reactively moving people following a natural disaster). Each of these tools may be thwarted by longstanding property and tort law doctrines developed during a more stable physical environment.
In this Article, I argue that as climate change destabilizes the physical environment, legal doctrine is ripe for destabilization too. Using coastal zone adaptation challenges as a touchpoint, I show how legal doctrines designed for a more stable physical environment constrain climate adaptation. For example, if governments invest in armoring measures, they will confront physical takings jurisprudence that mandates just compensation. Meanwhile, regulatory takings jurisprudence dissuades coastal communities from taking innovative steps to safeguard the coast through proactive legislation. The duty to repair and maintain – a mixed question of property and tort law – complicates disinvestment by states and localities from coastal roads and their retreat from coastal areas. Legal doctrine needs to adapt to meet the climate moment. Absent a doctrinal change, climate adaptation will default to unmanaged retreat – an ad hoc, reactive, and disjointed ‘strategy’ that exacerbates existing inequalities.
Nevitt, Mark, The Legal Crisis Within the Climate Crisis (February 27, 2023), Stanford Law Review, volume 76, 2024.
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