The Intersection of the Takings Clause and Rising Sea Levels: Justice O’Connor’s Concurrence in Palazzolo Could Prevent Climate Change Chaos

Abstract

Takings Clause jurisprudence is in a state of disarray. The Supreme Court of the United States has not eased the difficult task of determining what constitutes an unconstitutional regulatory taking. Although the Supreme Court provided some guidance by articulating a three-prong test for determining what constitutes such a taking, it failed to define each prong. In a concurring opinion in Palazzolo v. Rhode Island, Justice Sandra Day O’Connor defined the character of the governmental act prong by emphasizing the importance of the purposes served by a governmental act. Justice O’Connor’s approach is well suited to handle future environmental regulations aimed at protecting coastal regions from rising sea levels. By embracing this approach, the Court can reduce the confusion surrounding takings jurisprudence, provide uniformity at a critical time, swiftly handle the excess of takings claims that will inevitably materialize, and give deferential treatment to important regulations that possess strong public purposes.