Climate change, especially its symptom of sea level rise, will “unsettle expectations” and present unique challenges to takings jurisprudence. Historically, most takings issues focused on situations with clear instances of causation. For example, requiring a physical intrusion upon or forbidding development on private property clearly hinders a landowners’ ability to use their property, make a profit, or recover an investment.
Climate litigation is becoming increasingly common in courts around the country, as affected parties turn to the judicial branch following more than a decade of congressional silence. With litigants taking their actions to court, judges have been forced to grapple with climate science as well as the fundamental legal issues implicated by climate litigation.
Scholars have criticized the issuance of nationwide injunctions by district courts, arguing that they are an inappropriate and excessive use of power. Others have defended nationwide injunctions, asserting that they are necessary to ensure complete relief for plaintiffs.
Juliana v. United States is “no ordinary lawsuit.” Twenty-one Youth Plaintiffs from the United States have alleged that the federal government has knowingly abetted the fossil fuel industry in activities that have caused significant carbon dioxide (CO2) pollution for over fifty years. The continuation of policies and practices the government knows to be harmful to the environment is, according to plaintiffs, an infringement on their “constitutional rights to life liberty, and property.”