ABSTRACT
This Article presents a historical, evidentiary, and normative case for a private negligence tort against public utilities for failure to adjust operational and planning decisions to new conditions brought about by climate change. As an extension of the traditional utility duty to serve, the tort duty to adapt includes obligations of reasonable notice of service interruption, avoidance of unnecessary power outages, and updating technologically available standards in operations and planning to encompass the foreseeable risks of climate change. Modern examples of extreme weather service outages, hurricanes, and wildfires are surveyed to demonstrate an evidentiary basis for judicial recognition of a tort duty for public utilities to take reasonable safety precautions to reduce adaptation risks. A private law duty to adapt for public utilities complements existing regulation in addressing rapidly emerging risks presented by climate change.
Jim Rossi and Michael Panfil, Climate Resilience and Private Law’s Duty to Adapt, 100 North Carolina Law Review 1135 (2022).
First posted 2022-06-10 11:00:54
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