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20 - Weaponizing Private Property and the Chilling Effect of Regulatory Takings Jurisprudence in Combating Global Warming

from Part III - Law’s Role in Promoting Hazard Mitigation: Intergovernmental, International, National, and Local Approaches

Published online by Cambridge University Press:  27 October 2022

Susan S. Kuo
Affiliation:
University of South Carolina School of Law
John Travis Marshall
Affiliation:
Georgia State University College of Law
Ryan Rowberry
Affiliation:
Georgia State University College of Law
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Summary

Forty years ago, the Supreme Court created a new doctrine to protect property rights, called regulatory takings. That doctrine is an answer in search of a problem. The well-established law of eminent domain had developed over a century ago relatively clear guidance on how to distinguish between government actions that took someone’s property, thus requiring compensation, and government actions that merely regulated property and did not require compensation. Ignoring the long tradition in eminent domain, the Court has created an entirely new, completely incoherent, and fundamentally flawed constitutional jurisprudence that hampers the ability of governments to address the critical threats of climate change. But even within the Court’s incoherent regulatory takings doctrine, there are lessons for state and local governments on how to better prepare for disaster resilience and address the inequitable effects of climate change. This chapter explores the constitutional limitations on governments in their efforts to regulate to protect against climate disasters and identifies possible strategies for responding to climate events within the parameters of the Court’s incomprehensible property jurisprudence.

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The Cambridge Handbook of Disaster Law and Policy
Risk, Recovery, and Redevelopment
, pp. 327 - 350
Publisher: Cambridge University Press
Print publication year: 2022

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