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Can Governments Be Held Liable for Failure to Adapt to Climate Change?
Looking into the future of climate change adaptation, meeting the twin climate change adaptation policy goals of reducing vulnerability and increasing resilience is difficult to envision without vast infusions of new and retrofitted infrastructure designed with adaptation in mind. A “defend the coast” strategy for a coastal jurisdiction facing sea level rise, for example, is likely to require coastal armoring and road improvements, and a retreat strategy necessarily requires new infrastructure to support displaced populations. Private and public investment in climate change adaptation infrastructure is likely to be extensive, and it is as likely that it will fail in some instances due to design defects and poor operating decisions. Given it is intended to reduce vulnerability and increase resilience, failure of adaptation infrastructure could have dire consequences for communities. If that happens, who will be liable? And what if government entities provide no adaptation infrastructure in the first place? The law of public infrastructure liability is likely to undergo intense pressure as questions like these are increasingly put in play. (more…)