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Potential Liability of Governments for Failure to Prepare for Climate Change

Sabin Center for Climate Change Law, Columbia Law School, August 2015

32 Pages Posted: 30 Sep 2015 Last revised: 29 Oct 2015

Jennifer Klein

Columbia University - Sabin Center for Climate Change Law

Date Written: August 1, 2015

Abstract

As governments turn a blind eye to the accumulating risks of climate change, do they expose themselves to potential legal liability? This paper explores three possible legal claims against state and local governments for their failure to prepare for climate change. Specifically, the paper addresses potential claims sounding in negligence, fraud, and takings, describing the benefits and challenges of each theory. The paper explores ways to overcome a government’s claim of sovereign immunity in the context of a negligence claim, noting in particular the common government waiver of immunity for claims arising out of dangerous conditions of government owned property. The paper describes the challenges of bringing a claim for fraud where officials intentionally obscure relevant information about climate change risks, including the sovereign immunity defense as well as difficulties proving causation and intent in this context. Finally, the paper explores claims for just compensation where a government causes property to be damaged or destroyed through its failure to prevent the impacts of climate change, and concludes that this type of suit is the most promising of the three.

Keywords: government liability, negligence, fraud, takings, sovereign immunity, adaptation, climate change

Suggested Citation

Klein, Jennifer, Potential Liability of Governments for Failure to Prepare for Climate Change (August 1, 2015). Sabin Center for Climate Change Law, Columbia Law School, August 2015. Available at SSRN: https://ssrn.com/abstract=2667240 or http://dx.doi.org/10.2139/ssrn.2667240

Jennifer Klein (Contact Author)

Columbia University - Sabin Center for Climate Change Law

Jerome Greene Hall
435 West 116th Street
New York, NY 10027
United States

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