Climate Adaptation and Liability: A Legal Primer and Workshop Summary Report

The Conservation Law Foundation addresses the legal liability risks of decision makers if they fail to prepare for climate change impacts to infrastructure in this report. Theories of legal liability are described for design professionals (such as engineers and architects) or government entities (like a city or a water reclamation district) as related to climate adaptation and resilience of buildings, roads, and other critical infrastructure. The report was produced from workshops that took place in Boston and has many references to specific laws and regulations in Massachusetts. However, according to the authors, these concepts, and themes, including much of the legal background, is applicable to other parts of the country as well.

This resource was featured in the February 8, 2018, ASAP Newsletter.

"Are government entities on the hook for damages related to foreseeable climate change impacts? The Conservation Law Foundation’s new publication, Climate Adaptation and Liability: A Legal Primer and Workshop Summary, sheds new light on public and private legal liability risks in our changing climate.

ASAP member Deanna Moran of CLF weighs in: 'Understanding the legal liability consequences for failing to adapt will undoubtedly be an important lever for implementation of much-needed adaptation measures and for moving the needle on climate resiliency.'"

The report includes an introduction to existing case law, with relevant examples of the types of claims that could occur if a design professional or public official failed to adequately undertake climate adaptation measures. These theories of liability as related to climate change adaptation are based on existing laws and precedent.

Part I describes the legal liability of design professionals for failure to adapt - considering liability for damages under the common law torts of negligence and nuisance, and contract law, among others. For example, a contract between a design professional and another party can serve as the basis of a claim for liability if a provision related to climate preparedness (e.g., roof able to withstand a certain amount of snowfall) was not satisfied.

Part II: ‘Liability of Contractors, Developers, Realtors, And Insurance Agents’ describes how contractors may be subject to liability for negligence claims and breach of contract claims. The primary vulnerability for liability can arise from either misrepresentation or failure to disclose known climate impacts to the property.

The potential liability of state and local governments and government officials is detailed in Part III. Governments could face claims for failing to integrate climate change adaptation into their actions. As described in the report, local governments may be particularly vulnerable given the number of decisions they make that could influence impacts, such as flooding and erosion for example.


Publication Date: January 31, 2018

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  • Legal Analysis

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