Shannon Roesler (University of Iowa – College of Law) has posted Fairness Without Fault: Takings, Torts, and Climate Adaptation on SSRN. Here is the abstract:
This Article examines whether federal takings doctrine should impose constitutional liability on governments for property damage arising from infrastructure design and climate adaptation decisions. As climate disruption intensifies, state and local governments increasingly make choices that redistribute risk among property owners rather than eliminate it, prompting claims that government has taken private property by exposing it to flooding, erosion, wildfire, or other harms. Using Devillier v. Texas as a case study, I demonstrate how these claims reflect a growing conflation of tort and takings principles in federal law. This doctrinal confusion risks constitutionalizing ordinary infrastructure failures and land-use tradeoffs made under conditions of uncertainty. I therefore caution against proposals to recognize an affirmative governmental duty to protect private property under the Takings Clause and explain why negligence-based or duty-oriented approaches are ill suited to climate adaptation and inconsistent with both tort law and constitutional doctrine. Finally, I explore the broader consequences of expanding takings liability, including increased federal court oversight of local land-use decisions, diminished deference to state law, and the expansion of absolutist conceptions of property rights that may inhibit climate adaptation. I conclude by arguing for a clarified intent requirement to restore doctrinal limits and preserve governmental capacity to manage climate and disaster risks.
Highly Recommended!