Enlisting Private Law to Regulate Private Climate Adaptation Failure

• Pages: 72-85
• Date: 01 July 2025
• Published date: 01 July 2025
• Author: Christian Stirling Haig
• Subject Matter: Administrative & Public Law

ARTICLES

55 E LR 10424 ENVIRONMENTAL LAW REPORTER JULY/AUGUST 2025

ENLISTING PRIVATE LAW

TO REGULATE PRIVATE CLIMATE

ADAPTATION FAILURE

by Christian Stirling Haig

Christian Stirling Haig is a 2026 J.D. candidate at Georgetown University

Law Center and 2026 M.P.P. candidate at Harvard University.

As climate change intensies, communities face

challenges in addressing risk from climate change

threats like wildre and ooding.1 e public sec-

tor is indispensable to protecting communities from these

physical r isks, i ncluding t hrough long-term plan ning and

investment in more resilient infrastructure. However, gov-

ernment lacks the capacity to address all climate risk, in

part because the public sector faces practical and lega l lim-

its that prevent it from directly compelling private individ-

uals to invest in risk-reducing climate adaptation measures

on private property.2 is “residual climate risk” is the risk

1. I P  C C (IPCC), C

C 2022: I, A,  V: W

G II C   S A R   I-

 P  C C 51 (H.-O. Pörtner et al.

eds., 2022) (discussing increasing physical threats to communities).

2. See id. at 162 (noting the insuciency of public resources alone in address-

ing adverse climate change impacts).

Editor’s Note: Published here for the f‌irst time, this Article

won the Vermont Journal of Environmental Law’s 2025

White River Environmental Law Writing Competition.

Author’s Note: I would like to thank Aisha Saad for her

thoughtful review and guidance.

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 ordi-

nances 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 ada ptation. Using Fort Lauderdale as a case study, it explores

how state and local policymakers can struggle to ad dress unmitigated threats, and discusses ways to promote

property owners using private law to hold noncompliant neighbors accountable. While common-law doc-

trine will evolve in response to climate change, a proactive private-law strategy can help mitigate residual

climate risk in the near term.

SUMMARYSUMMARY

that private individuals fai l to mitigate, but that is beyond

the government’s direct ability to address.

While residual climate risk may manifest on private

property, it presents a worsening public policy problem,

because private failure to adapt to climate change can

leave surrounding public and private property exposed to

increasing climate dangers. For example, a municipal gov-

ernment in an arid region may issue an ordinanc e requiring

routine brush-clearing arou nd private re sidences to reduce

wildre risk. Property-ow ner noncomplia nce, or “private

adaptation failure,” however, may provide wildres with

the fuel necessar y to reach neighboring properties.3 In sum,

private adaptation failure that leaves residual climate risk

unmitigated ca n endanger the wider public.

Unmitigated residual climate risk has already borne

devastating consequences. In 2018, for example, the Camp

Fire utterly destroyed the town of Paradise, California,

killing 84 people.4 Arson investigators traced the re’s

3. See James Taylor, Sacramento Says Residents Who Fail to Clear Dry Brush

Could Face Fines During Fire Season, CBS N (June 14, 2024), https://

www.cbsnews.com/sacramento/news/sacramento-dry-brush-warning-nes-

re-season/ (Sacramento attempting to address private-property owners’

failure to address climate risk).

4. M L. R  ., T C F P R 2 (2020).

Copyright © 2025 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org