Duty and Breach in an Era of Uncertainty: Local Government Liability for Failure to Adapt to Climate Change

Abstract

In Litigating Climate Change Adaptation, I argued that despite a general skepticism about tort law's ability to tackle climate change there is an important role for this quite powerful branch of common law. Claimants can seek compensation for harms incurred because of the negligent acts of local governments and developers vis-a-vis climate preparedness, or lack thereof. The article argued that increased threat of liability as well as the possibility of growing success in the courts would galvanize more rigorous adaptation and mitigation efforts at all scales. Though an indirect benefit, adaptation litigation could be a purposeful use of tort's deterrence and behavior-changing potential. That article did not, however, address the important and more challenging questions related to the nature and scope of the duty to which local governments would now have to adhere. Further, it did not tackle the possibility of more expansive duty obligations, which public policy may well demand in light of accelerated climate change. This Article attempts to do just that by exploring (1) reasonable conduct under climate-change circumstances and (2) the emergence of new obligations "to which the law will give recognition and effect."

Keywords: climate change, climate adaptation, government duty, disaster preparedness

JEL Classification: K13, K39, K49