Rising Seas and Common Law Baselines: A Comment on Regulatory Takings Discourse Concerning Climate Change

Abstract

In several recent cases considering claims that regulatory measures addressing rising sea levels violate the Takings Clause, courts have given significant normative weight to traditional common law rules, even when such rules have long been superseded by statutory provisions. This essay argues that giving analytic precedence to such common law baselines lacks justification and can pose serious obstacles to reasonable measures to adapt to climate change.

Keywords: regulatory taking, climate change, sea-level rise

JEL Classification: K20, K23, K32, Q20, Q25, Q28