As governments turn a blind eye to the accumulating risks of climate change, do they expose themselves to potential legal liability? A new working paper by former Sabin Center fellow Jennifer Klein explores three possible legal claims against state and local governments for their failure to prepare for climate change.
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.
If claims under any of these theories are successful, such litigation could be used to promote climate change adaptation by encouraging governments to weigh the costs and benefits of both action and inaction in the face of the increasing risk of natural disasters.
Reprinted with permission from Climate Law Blog
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