Sue to Adapt?

66 Pages Posted: 14 Nov 2014 Last revised: 28 Apr 2015

Jacqueline Peel

Melbourne Law School

Hari M. Osofsky

Penn State Law (University Park)

Date Written: November 13, 2014

Abstract

Climate change litigation has influenced regulation substantially in the United States. Most notably, the Supreme Court’s decision in Massachusetts v. EPA serves as the basis for federal Clean Air Act regulation of greenhouse gas emissions from motor vehicles and power plants. However, most U.S. litigation thus far has focused on mitigation, i.e., how to limit emissions of the greenhouse gases that cause climate change.

This Article is the first to address the significance of an emerging area of U.S. litigation: cases focused on forcing or limiting government action to adapt to climate change. These new lawsuits – on issues such electric grid resiliency, protective sand dunes, coastal sewage system inundation, deterioration of coastal waters, and flood insurance – will help shape local, state, and federal efforts to plan for the impacts of climate change.

Although the United States has just begun to address adaptation in its courts, other common law countries are farther along. In particular, Australia, which faces many early impacts from climate change due to its geography, has more developed adaptation policy and jurisprudence. This Article not only explores the role of the developing U.S. case law, but also considers how the Australian experience might inform U.S. approaches. Drawing from extensive interviews with U.S. and Australian litigants and regulators in addition to doctrinal analysis, the Article argues that the Australian litigation illustrates pathways for U.S. litigation to build on its early cases to: (1) change planning culture, (2) use natural disasters as catalysts for adaptive planning, and (3) navigate more effectively the tensions between public adaptation interests and private property rights.

Keywords: climate change, adaptation, litigation, comparative law, resiliency, adapt, coastal, land use, property, local, takings, insurance, endangered species, torts, energy, electricity, grid, sewage, sand dunes, oceans

Suggested Citation

Peel, Jacqueline and Osofsky, Hari M., Sue to Adapt? (November 13, 2014). Minnesota Law Review, Forthcoming 2015; Minnesota Legal Studies Research Paper No. 14-50. Available at SSRN: https://ssrn.com/abstract=2523916

Jacqueline Peel

Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+613 8344 1115 (Phone)
+613 9347 2394 (Fax)

Hari M. Osofsky (Contact Author)

Penn State Law (University Park) ( email )

Lewis Katz Building
University Park, PA 16802
United States

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