Attribution Science in Takings Litigation

By Daniel J. Metzger

Climate science plays a central role in climate litigation, and cases under the Takings Clause of the United States’ and many state constitutions are no exception. In the climate context, takings cases to date have involved claims that challenge the constitutionality of both adaptation and mitigation measures. For instance, real estate developers have claimed that land use and zoning regulations that seek to reduce exposure to climate change impacts constitute regulatory takings.1 Property owners have claimed that restrictions on the development of fossil fuel infrastructure upset their investment-backed expectations. 2 And property owners adversely impacted by climate-related flood control measures have sought compensation for their harms.3 In these and other cases, the foreseeability of climate change impacts and the causal connections between local action and global climate change may or may not be explicit elements of a claim, but they remain critical issues for litigants and courts to address. This paper explicates the role of attribution science in climate-related takings cases. That science factors into plaintiffs’ claims, government defenses, and judicial decisions. For the purposes of this analysis, this paper examines how marshalling the best available climate change attribution science could bolster governments’ defenses of climate regulations. The next section reviews the legal framework for takings cases and provides a brief primer on attribution science. The paper then turns to three legal themes: (1) linking local mitigation to global impacts, (2) resetting expectations about how land can be used and, (3) relevant to flood control cases, the relative benefits conferred by imperfect flood control measures. As we shall see, attribution science has a clear and important role to play in how courts resolve climate change-related takings claims.