Climate change is not only affecting our weather, it is impacting property rights.
Climate Change, Property, and Claims.
Climate change is causing more, and more frequent, severe weather episodes such as droughts, floods, and hurricanes. It is also causing rises in smog and sea-levels. These catastrophic events impact hundreds of millions of people across the globe and can cause billions of dollars in damage to homes and businesses.
Here in the United States, natural disasters often lead to government interference. This, in turn, can result in takings claims.
For example, in 2017, a hurricane on the Texas Gulf Coast resulted in one of the worst climate-related disasters in U.S. history. Millions of people were displaced by the flooding and recovery costs reached into the billions. Because the U.S. Army Corps of Engineers had stepped in and made several controlled releases from two government-owned reservoirs during the storm, releasing water at six-and-a- half times the usual rate, thousands of homes and businesses that would have otherwise survived the hurricane were lost. Those affected sued the federal government claiming that in flooding their property, the government had effected a “taking” of private property because it actively chose to protect some homes at the expense of others.
Claims like those made by the Texas homeowners and businesses noted above are “inverse condemnation” claims.
The government’s power of eminent domain (“condemnation power”) gives the government (federal, state or local) the power to condemn or “take” private property when it is for a public purpose. However, it requires that the government pay the property owner “just compensation” for his or her property.
Inverse condemnation, on the other hand, is a claim brought by a person against the government. When the government takes private property (either in whole or in part) without providing compensation, the property owner can bring a claim of “inverse condemnation” against the government to recover damages.
Claims of inverse condemnation can arise in any number of situations. They can be caused by physical invasion of the property or by the government’s action or inaction that results in damage to the property. Inverse condemnation can also exist where the government’s actions reduce the economic value of property.
Because the government oversees and regulates many activities that contribute to global warming and climate change, it contributes to a large extent to the effects climate change has on private property. This, in turn, can lead to a physical taking. Which, in its turn, is leading to an increase in inverse condemnation actions.
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