Climate Change

3 posts

Still Underwater: The Need for Temporary Foreclosure and Mortgage Relief for Victims of Future Natural Disasters

Issues Volume 50, Issue 4

By Jason M. Sugarman

Over four years ago, Superstorm Sandy decimated New York and New Jersey. Homes were destroyed, individuals were displaced, and the costs of repairing damaged properties were enormous. Many Superstorm Sandy victims could not maintain their monthly mortgage payments, and as a result faced foreclosure.

This Note proposes that New Jersey adopt legislation providing temporary foreclosure and mortgage relief to victims of future natural disasters. Part II of this Note describes FEMA;s origination and its role in assisting natural disaster victims. Part III outlines Superstorm Sandy‘s destructiveness and its impact on homeowners. Part IV explains the National Flood Insurance Program and specifically why so many Superstorm Sandy victims had underpaid flood insurance claims. Part V describes HUD’s role in helping natural disaster victims and the state sponsored programs in New York and New Jersey that used grants from HUD to assist Superstorm Sandy victims. Parts VI and VII outline additional problems, such as foreclosure, that Superstorm Sandy victims faced while trying to return to their homes. Part VIII examines New Jersey legislation that provides temporary foreclosure and mortgage relief for Superstorm Sandy victims. Finally, Part IX describes the terms of this Note‘s legislative proposal and the policy basis for enacting temporary foreclosure and mortgage relief for victims of future natural disasters.

Download Article

Dynamically Interpreting Property in International Regulatory Takings Regimes

Issues Volume 51, Issue 1

By Hao Zhu

The North American Free Trade Agreement (NAFTA)’s Article 1110 — which created an expropriations remedy for foreign investors — has expanded into an international regulatory takings regime over the last two decades. Newer international trade agreements, such as the Trans Pacific Partnership Agreement (TPPA), have continued to include expropriations provisions by default, further expanding the reach of these takings regimes.

This Note focuses on the NAFTA in order to explore the tension within international regulatory takings regimes, between investor property interests and sovereign interests to regulate for the public welfare. First, this Note traces the contours of international regulatory takings doctrines, organizing them in a Penn Central framework. Against other commentators, this Note argues that though the case law has not been a model of clarity, the law has settled into a framework analogous to Penn Central. Second, this Note elaborates on and rejects the critique that international regulatory takings regimes erode states’ sovereignty to regulate for the public welfare, while acknowledging that the structural problem of private law tribunals deciding the public law values of property needs to be addressed.

To address this structural problem, this Note proposes that the NAFTA’s authoritative bodies interpret property dynamically, in light of the public welfare concerns raised by global climate change. Specifically, this Note proposes that the NAFTA’s Free Trade Commission issue authoritative Notes of Interpretation to dynamically interpret Article 1110 to shift the balance toward sovereign regulatory power to address global climate change. Lastly, this Note applies that interpretation of Article 1110 to the facts of the dispute between TransCanada Corp. and the United States over the Keystone XL oil pipeline, ultimately concluding that no regulatory takings occurred.

Download Article

An Injury to the Inheritance: Locating an Affirmative Obligation to Climate Adaptation in the Law of Waste

Issues Volume 52, Issue 4

By Samuel Niiro

As global temperatures continue to rise, most climate policy conversations have focused on mitigation measures, aimed at reducing the proliferation of greenhouse gases and curbing the rise in temperatures. Discussions, especially in legal literature, about climate adaptation measures — those intended to, for example, prepare for rising sea levels or increasing incidence of extreme weather events — have generally focused on the powers and responsibilities of government actors. Private citizens too, however, may also have a duty to prepare for climate change.

The law of waste is a longstanding doctrine under which holders of a current possessory interest in real property, such as tenants or mortgagors, bear certain responsibilities towards holders of concurrent or future interests, such as lessors or mortgagees. This Note argues that a subset of the law of waste, called permissive waste, may be read to impose a duty to affirmatively pursue climate adaptation measures on tenants and other similarly-situated individuals. Part II provides background information on current efforts to find a legal basis for a duty to pursue climate adaptation. Part III examines the history of the law of waste, with particular attention to the concept of permissive waste. Parts IV and V outline how the law of waste could be applied to the problem of climate adaptation, exploring the necessary conditions for such a claim to be made as well as the uses and limitations of using the law of waste in this fashion.

Download Article