As climate change destabilizes the physical environment, longstanding legal doctrines are also ripe for destabilization. Today, federal, state, and local climate adaptation measures must be careful to not run afoul of the Regulatory Takings doctrine.  This constitutional doctrine, designed for a more stable environment, should be looked at with fresh eyes in light of climate change’s disruptive effects.

What, exactly, is a Regulatory Taking doctrine and how does it affect climate adaptation?

Under the U.S. Constitution, the Fifth Amendment’s Takings Clause states that private property “shall not be taken for public use without just compensation.”  Since the nation’s founding, this has prevented the government from physically taking private property for “public use.”  Today, the Takings Clause also encompasses governmental regulation of private property, potentially providing a chilling effect for future climate adaptation efforts.

Indeed, the scope of the Takings Clause greatly expanded in 1922 when the Supreme Court held that governmental regulations may also run afoul of the Takings Clause.  In the Court’s reasoning, a governmental regulation that goes “too far” in diminishing a property’s value by a “certain magnitude” will constitute a compensable taking.  While climate change disrupts our environment, this vague legal standard has held relatively steady.  It will come under closer scrutiny as federal, state, and local governments increasingly look to take forward-looking and innovative action to address climate change.  Questions about its applicability arise.  For example, does governmental regulation prohibiting the construction of large swaths of vulnerable coastal property exposed to climate change and extreme weather go “too far” in diminishing a property’s value?  Indeed, offshoots of the regulatory takings doctrine may already be thwarting proactive, well-intentioned, actions necessary to address climate change’s future impacts on sea level rise, storm surge, and flooding.

Consider the long shadow of another seminal regulatory takings case, Lucas v. South Carolina Coastal Commission, decided in 1992.  In Lucas, the Supreme Court struck down a South Carolina restriction on the building of property on a coastal barrier island, ruling that the regulation deprived the land of all beneficial use.  Since Lucas, state and local governments have been fearful of takings lawsuits, particularly for construction limitations on land vulnerable to climate change.  Indeed, many municipalities in coastal areas have been reluctant to tackle beach erosion issues exacerbated by climate change-driven extreme weather.  Yet recent advances in climate attribution science connects human activity, climate change, and extreme weather patterns.  Lucas-stylized regulation will be needed now and in the foreseeable future as we confront sea level rise.  But just the looming threat of litigation may be enough to dissuade such climate action, even if it ultimately passes constitutional muster.  After all, passing and enforcing such regulations can drain municipalities with crushing litigation costs.

Further complicating matters, state and local governments may seek to withhold municipal services or gradually disinvest from access roads and places uniquely vulnerable to climate change.  But this, too, may be subject to a regulatory takings claim as homeowners assert that governmental disinvestment cuts their homes off from the broader community, diminishing their property’s value.  So governments must walk a legal tightrope between action and inaction.

Where do we go from here? 

Governmental action on climate may be able to avoid regulatory takings liability for reasons of emergency or actual necessity.  Federal, state, and local legislators should be upfront about the costs imposed by climate change and should tie their actions to the public health, welfare and safety of its citizens.  As Professor Cary Coglianese and I have previously argued, we are already paying a climate tax that is “hidden, unfair, and ever-increasing.”  Legislators should actively engage with advances in climate science and frame their climate adaptation measures as necessary to protect the health, safety and welfare of the community. While climate change is not (yet) a national emergency, legislative bodies should be upfront about the heavy costs imposed by climate change, leaving legislators with only a few options that are necessary to safeguard the welfare of their community.

We are nearly 100 years since the Supreme Court broadened the scope of the Takings Clause. Climate change is dramatically impacting our human environment in new and unimaginable ways, causing cities and states  to take forward-looking adaptation measures to meet  climate change’s challenges.  Absent a doctrinal change, the regulatory takings doctrine will increasingly have a chilling effect on bold climate adaptation measures, discouraging courageous climate action.   We must fundamentally re-think and re-frame this doctrine to take into account our changing environment.  Indeed, just as climate change will force communities to adapt, so, too, must the regulatory takings doctrine.

Mark Nevitt is the George Sharswood Fellow and a Lecturer-in-Law at the University of Pennsylvania Law School.

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