The Legal Crisis Within the Climate Crisis

Climate change creates a difficult choice for property owners and governmental officials alike: Should they invest in costly climate adaptation measures or retreat from climate-exposed areas? Either decision is fraught with legal uncertainty, running headfirst into antiquated legal doctrines designed for a more stable world. Climate impacts to the coastline are forcing policymakers to consider four adaptation tools: (1) resisting climate impacts by building sea walls and armoring the shoreline; (2) accommodating those impacts by elevating existing structures; (3) managed retreat such as systematically and preemptively moving people out of harm's way; and (4) reactively moving people to new locations following natural disasters. This final tool of unmanaged retreat has emerged as the default "strategy." However, longstanding property and tort law doctrines-developed when there was a more stable physical environment-are poised to thwart these tools. In this Article, I argue that just as climate change destabilizes the physical environment, legal doctrine is also ripe for destabilization. Using coastal zone adaptation challenges as a touchpoint, I show how legal doctrines designed for a more stable physical environment constrain climate adaptation efforts. For example, if governments invest in armoring measures, they will confront physical takings jurisprudence that mandates just compensation. The duty to repair and maintain-a mixed question of property and tort law-complicates disinvestment by states and localities from coastal roads and their retreat from coastal areas. Legal doctrine needs to adapt to meet the climate moment. Absent a doctrinal change, climate adaptation will default to unmanaged retreat-an ad hoc, reactive, and disjointed "strategy" that exacerbates existing inequalities.