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Dozens of Alaska Native villages face an existential crisis as Alaska's permafrost melts, causing soil erosion and instability. Adapting to these rapidly changing conditions is unworkable, so most villages will have to physically move to locations atop bedrock. The estimated costs for these moves are enormous, and not even the combination of available federal and state administrative resources can adequately cover them. One possible avenue for funding is a state inverse condemnation regulatory takings claim, which posits that state action has caused the property destruction in the villages. Alaska has a unique relationship to its oil extraction industry, which has demonstrably contributed to global climate change, the main cause of the permafrost melt. To facilitate a potential takings claim, this Note presents two possible avenues for argument: a "direct approach" that focuses only on state oil leases as government action and a "hybrid approach" that instead considers the leases as part of a more holistic investment by the state in its oil. This Note also considers the shortcomings of the overall takings strategy, along with the potential for its use in response to other cases of environmentally related property destruction.
Sasha Kahn, It Takes a Village: Repurposing Takings Doctrine to Address Melting Permafrost in Alaska Native Towns, 39 Alaska Law Review 105-138 (2022)
Available at: https://scholarship.law.duke.edu/alr/vol39/iss1/13