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Climate Change, Takings, and Armstrong

Apr 01, 2020

Andrew S. Flynn

Volume 46 (2019) - Issue 2

Climate change, especially its symptom of sea level rise, will “unsettle expectations” and present unique challenges to takings jurisprudence. Historically, most takings issues focused on situations with clear instances of causation. For example, requiring a physical intrusion upon or forbidding development on private property clearly hinders a landowners’ ability to use their property, make a profit, or recover an investment. In contrast, climate change presents tough causation issues. Externalities and effects may not develop for years or decades and often are borne by individuals and communities far away from where the causal action took place.

A recent Federal Circuit decision arising from the aftermath of Hurricane Katrina illustrates how current takings jurisprudence struggles to account for the changing reality of climate change. This In Brief suggests use of Justice Hugo Black’s Armstrong principle to help the courts and judges “adapt current rules to the novel issues posed by climate change,” as well as provide a more effective remedy for property owners than other forms of climate litigation.