As with almost all climate litigation, science plays a central role in climate cases brought under the Takings Clause of the United States’ and many state constitutions. The cases filed to date have involved claims that challenge the constitutionality of both adaptation and mitigation measures. For instance, real estate developers have claimed that land use and zoning regulations that seek to reduce exposure to climate change impacts constitute regulatory takings. Property owners have claimed that restrictions on the development of fossil fuel infrastructure upset their investment-backed expectations. And property owners adversely impacted by climate-related flood control measures have sought compensation for their harms. The foreseeability of climate change impacts and the causal connections between local action and global climate change are not always explicit elements of a claim, but they remain critical issues for litigants and courts to address.
A new white paper published today examines the role attribution science plays in climate-related takings cases. That science factors into plaintiffs’ claims, government defenses, and judicial decisions. Among other conclusions, the paper suggests that marshalling the best available climate change attribution science can bolster governments’ defenses of climate regulations.
Additional resources from the Sabin Center on the intersection of law and science include The Law and Science of Climate Change Attribution, a comprehensive overview of attribution research and its application in legal settings, and the Climate Attribution Database, a thematically organized repository of state-of-the-art climate change attribution science. For more information about the Sabin Center’s other publications visit our searchable library here.