Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Government Liability and Climate Change: Draft Report Available

In May 2014 Illinois Farmers Insurance Company made headlines around the country when it sued almost 200 towns in the Chicago area for failing to do more to prevent damages linked to climate change. The suit argues that towns know that climate change is happening and should do more to address flooding.  This case and others like it are being watched with considerable interest by local governments across the country.  It has implications for individual insurance policy holders as well since there is speculation that this lawsuit is part of a larger strategy by Farmers parent company — Zurich Insurance Group—to avoid paying out for future climate change related losses worldwide.

Local governments and others are watching the case.  It is likely that there will be more and more lawsuits similar to this in the future from insurance companies and others in response to the changes wrought by a changing climate, and in particular the predicted increase in the intensity and frequency of natural hazard events such as floods, hurricanes, and drought.

The Association of State Wetland Manger’s Associate Director,  Dr. Jon Kusler Esq. has recently finished a draft report: “Government Liability and Climate Change: Selected Legal Issues.”

The paper examines the following legal issues:

  1. Are governmental units potentially liable for failing to consider climate change in their policies and activities?  If so, under what legal theories?
  2. Are governments potentially liable for tightly regulating development in flood hazard areas with flooding caused by or worsened by climate change?
  3. If governments are potentially liable in either situation, how can they reduce potential liability?

The 36 page report includes the following summary and recommendations:

No court has yet held a governmental unit liable for failure to reflect climate change in its programs with resulting increased flood damages to private property. However courts have widely held governments liable in cases involving more traditional flooding and erosion for increasing flood damages on upstream, downstream or adjacent lands.  And, successful suits with climate-change elements or based primarily
on climate change where flooding and damages caused by government actions or inactions are increased or would not ordinarily occur maybe expected in the coming years. This is particularly true where scientific studies quantify climate change and increases in the frequency and intensity of flooding.

To reduce flood damages from climate change, governments can strengthen their floodplain regulations including revised floodplain maps, increased flood proofing elevations, and broadened floodways and coastal high velocity areas. However, some of these regulations will likely be challenged by private landowners as a taking of private property without payment of just compensation. Based upon the broad support courts to date have given to more traditional floodplain regulations and the growing scientific contentious concerning climate change,  courts are likely to uphold restrictive climate-change related regulations.

Looking to the future, climate-related natural hazards will be increasingly quantified, foreseeable and predictable with improved computer models and global and regional monitoring. As this occurs, governments may be held liable for flooding in areas which have not previously flooded and/or for exacerbating existing flood problems. Governments need to be particularly careful with their policies for areas behind dikes, dams, and levees where catastrophic losses may occur if design frequencies are exceeded and the legal doctrine of “strict liability” may apply.

All levels of government may be sued under common law or Constitution theories for causing or exacerbating climate-related flood problems but local governments are particularly vulnerable as they design and operate stormwater systems and undertake other activities (construction of dams, levees, fills, ditches, culverts, highway construction) where they may increase flooding and erosion on some private lands while reducing it on others. Their failure to take into account climate change may be considered by a court to be “unreasonable” and “negligent” conduct, particularly where there is a high concentration of risk factors.

To reduce potential liability based upon claims of negligence (“unreasonable” conduct) or other legal theories (“nuisance”, “trespass”, etc.) governments should reflect climate change in their policies and programs and take measures to address climate change. These actions would not only reduce the potential for successful climate change-related suits but also the potential for litigation based on more traditional types of flooding and erosion.  They could do so with confidence that courts will uphold such regulations although courts in a small number of cases have held more traditional regulations which deny all economic use of land a taking of private property without payment of just compensation.  Governments can take a variety of measures to reduce the potential for courts to hold that tight regulations adopted to reduce climate change-related flooding are a taking.

The full report can be found here and comments on the draft report will be accepted through July 30. If you have questions or would like to provide comments on the report please contact Jon Kusler at .

The bottom line is that all levels of government should be cognizant of the challenging  balancing act needed to protect human health and safety while remaining sensitive to private property rights concerns.  The report includes specific actions government can take to achieve that balancing act in ways that will be legally defensible.  In addition there is a rapidly growing body of information available to assist communities in responding to climate change and developing fair, defensible policies based on sound science.

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