Enlisting Private Law to Regulate Private Climate Adaptation Failure

August 2025
Citation:
55
ELR 10424
Issue
4
Author
Christian Stirling Haig

State and local governments are contending with the challenge of “residual climate risk”—threats posed by private adaptation failures that endanger surrounding communities. While policy tools like municipal ordinances can help address this gap, enforcement challenges, budget constraints, and private-property rights often limit their effectiveness. Meanwhile, federal support for adaptation has significantly declined, forcing state and local governments to explore alternative approaches. This Article argues that private-law remedies such as nuisance and negligence claims offer a viable, low-cost, and politically feasible mechanism to deter private adaptation failure and promote climate adaptation. Using Fort Lauderdale as a case study, it explores how state and local policymakers can struggle to address unmitigated threats and discusses ways to promote property owners using private law to hold noncompliant neighbors accountable. While common-law doctrine will evolve in response to climate change, a proactive private-law strategy can help mitigate residual climate risk in the near term.

Christian Stirling Haig is a 2026 J.D. candidate at Georgetown University Law Center and 2026 M.P.P. candidate at Harvard University.