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But Flooding is Different: Takings Liability for Flooding in the Era of Climate Change

November 2020

Citation: 50 ELR 10920

Issue: 11

Author: J. Scott Pippin and Mandi Moroz

With the increased risk of flooding due to climate change, potential liability from construction and maintenance of flood control measures is a major consideration governments must consider when planning and building them. This Article discusses how the Supreme Court’s decision in Arkansas Game & Fish Commission v. United States (AGF) laid the groundwork for a new form of takings that the authors term “negligent takings,” increasing the likelihood that the government will be liable after a flooding event. It highlights concerns with the lack of guidance provided by AGF and how lower courts have inconsistently applied the AGF test in cases following Hurricane Katrina and Hurricane Harvey. Providing greater clarity to the scope of this liability and limiting the application of negligent takings is critical to ensuring that governments are able and willing to take action to adapt to climate change.

J. Scott Pippin, Esq., is Associate Public Service Faculty at the Carl Vinson Institute of Government at the University of Georgia. Mandi Moroz is an Associate at Troutman Pepper Hamilton Sanders LLP, where she specializes in environmental litigation and regulatory compliance issues.

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