Climate risk and public sector liability in infrastructure projects

By Asad Ullah 

Climate change has transformed the risk landscape for infrastructure development across the world, including countries like Pakistan. Public sector infrastructure—such as roads, dams, bridges, energy Systems, and urban drainage—faces increasing exposure to climate-related hazards like floods, heatwaves, sea-level rise, and extreme weather events. As governments remain the primary planners, funders, and regulators of such projects, the issue of public sector liability in the context of climate risk has become critically important. This essay explores the nature of climate risk, how it affects infrastructure, and the evolving legal and policy frameworks that shape public sector liability.

1.  Understanding Climate Risk in Infrastructure

Climate risk refers to the potential negative impacts arising from climate variability and long-term climate change. It is generally categorized into three types:

• Physical risks: Direct damage caused by extreme weather events (e.g., floods destroying roads or bridges).
• Transition risks: Financial and regulatory risks arising from shifts toward a low-carbon economy (e.g., fossil fuel infrastructure becoming obsolete).
• Liability risks: Legal responsibility for failing to prevent or adapt to climate-related

Infrastructure projects are particularly vulnerable because they are long-term investments, often designed to last decades. If climate risks are not properly assessed at the planning stage, projects may fail prematurely, resulting in economic loss and potential legal consequences.

2.  Role of the Public Sector in Infrastructure Development

The public sector plays multiple roles in infrastructure projects:

• Planner and policymaker: Setting standards, zoning laws, and environmental
• Financier: Funding projects directly or through public-private partnerships (PPPs).
• Operator and maintainer: Managing infrastructure over its
• Regulator: Ensuring compliance with safety and environmental

Given these roles, governments can be held accountable if infrastructure fails due to inadequate planning, negligence, or failure to incorporate climate resilience.

3.  Legal Basis of Public Sector Liability

Public sector liability in infrastructure projects typically arises under the following legal principles:

a.  Negligence

Governments may be liable if they fail to exercise reasonable care in designing, constructing, or maintaining infrastructure. For example, if a drainage system is designed without considering increased rainfall due to climate change, resulting in urban flooding, affected citizens may claim negligence.

b.  Duty of Care

Public authorities owe a duty of care to citizens to ensure that infrastructure is safe and functional. Climate change has expanded the scope of this duty, requiring authorities to anticipate foreseeable risks.

c.  Statutory Obligations

Environmental and planning laws may impose specific duties, such as conducting environmental impact assessments (EIAs). Failure to consider climate risks in such assessments can lead to legal challenges.

d.  Human Rights Framework

Climate-related infrastructure failures may violate fundamental rights, such as the right to life, health, and property. Courts in various jurisdictions have increasingly recognized the link between environmental harm and human rights.

4.  Climate Risk and Liability in Practice

Public sector liability can arise in several practical scenarios:

a.  Flood Management Infrastructure

If a government constructs embankments or dams that fail during extreme flooding due to poor design or outdated climate data, it may be held liable for resulting damages.

b.  Urban Infrastructure

Cities in developing countries, including Pakistan, often face drainage failures during heavy rainfall. If authorities fail to upgrade systems in line with climate projections, liability may arise.

c.  Coastal Projects

Infrastructure in coastal areas is increasingly threatened by sea-level rise. Failure to incorporate adaptive measures like seawalls or elevation can result in loss and subsequent legal claims.

d.  Energy Infrastructure

Public investment in carbon-intensive projects (e.g., coal plants) may expose governments to transition risks, including stranded assets and litigation for contributing to climate change.

5.  Challenges in Establishing Liability

Despite the growing recognition of climate risk, establishing public sector liability remains complex:

• Causation issues: It is difficult to prove that a specific climate event directly caused damage, especially when multiple factors are involved.
• Policy vs operational decisions: Courts often distinguish between policy decisions (less likely to attract liability) and operational negligence (more likely to attract liability).
• Resource constraints: Governments may argue limited financial or technical capacity to justify their actions.

• Scientific uncertainty: Although climate science is advancing, uncertainty still exists, which can complicate legal arguments.

6.  Evolving Legal Trends

Globally, there is a growing trend toward holding governments accountable for climate-related failures:

Climate litigation is increasing, with courts requiring governments to take stronger action on climate adaptation and mitigation.

Precautionary principle is being applied, meaning authorities must act even in the face of scientific uncertainty.

Standard of care is rising, requiring governments to integrate climate projections into infrastructure planning.

In some jurisdictions, courts have ruled that failure to address climate risks constitutes a breach of legal duty, signaling a shift toward stricter accountability.

7.  Public Sector Liability in Pakistan

Pakistan is among the most climate-vulnerable countries, facing floods, heatwaves, and glacial melting. Public infrastructure has repeatedly suffered damage, particularly during major flood events.

Key issues in Pakistan include:

• Weak enforcement of environmental laws
• Inadequate climate risk assessments in infrastructure planning
• Limited institutional capacity
• Lack of accountability mechanisms However, recent developments show progress:
• Courts have increasingly recognized environmental
• Climate policies and frameworks are being
• There is growing awareness of the need for climate-resilient

Despite this, the legal framework for explicitly addressing climate-related liability in infrastructure projects remains underdeveloped.

8.  Risk Mitigation and Policy Recommendations

To reduce public sector liability and enhance infrastructure resilience, several measures can be adopted:

a.  Climate-Resilient Planning

Governments must integrate climate projections into infrastructure design, ensuring that projects can withstand future conditions.

b.  Strengthening Legal Frameworks

Clear laws should define responsibilities and liabilities related to climate risk in infrastructure projects.

c.  Improved Environmental Impact Assessments

EIAs should explicitly include climate risk analysis and adaptation measures.

d.  Capacity Building

Public officials and engineers must be trained in climate risk management and resilient design.

e.  Insurance and Risk Transfer Mechanisms

Governments can use insurance and catastrophe bonds to manage financial risks.

f.  Public Participation and Transparency

Engaging communities can improve project design and accountability.

9.  Conclusion

Climate change has fundamentally altered the landscape of infrastructure development, making climate risk a central concern for public sector projects. As governments continue to play a dominant role in planning and managing infrastructure, their legal responsibilities are expanding. Public sector liability now extends beyond traditional negligence to include failure to anticipate and adapt to climate risks.

In countries like Pakistan, where climate vulnerability is high, addressing these challenges is not only a legal necessity but also a developmental imperative. Strengthening legal frameworks, improving planning processes, and enhancing institutional capacity are essential steps toward reducing liability and ensuring sustainable infrastructure.

Ultimately, proactive adaptation and responsible governance can help minimize risks, protect public resources, and safeguard the rights and well-being of citizens in an era of climate uncertainty.