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State Climate Suits: The Case for a Limited Remedy

In 2017, the cities of Oakland and San Francisco filed suit in California state court against BP, Shell, Chevron, ConocoPhillips, and ExxonMobil. The complaint asserted a claim of public nuisance and alleged that the energy company defendants had created or contributed to climate change by producing and promoting fossil fuel products for decades. Plaintiffs requested an abatement fund to construct infrastructure to adapt to climate harms such as sea level rise. In the short period since Oakland v. BP was filed, over a dozen cities, counties, and states have brought climate suits against energy companies in state courts

Mar 15, 2022
Nick Eberhart

Boulder v. Suncor and the Case for Judicial Climate Adaptation

When Canadian oil sands developer Suncor Energy brings some of the world’s dirtiest oil to market, much of it comes by way of its Colorado refinery. In Board of County Commissioners of Boulder County v. Suncor Energy, a group of Colorado communities sued Suncor for selling and marketing fossil fuels while deceiving the public about their contributions to global warming.

Mar 15, 2022
Brandy Doyle

Building a New Grid without New Legislation: A Path to Revitalizing Federal Transmission Authorities

New long-distance, high-voltage transmission will be vital if the United States is to integrate the renewable energy generation needed to decarbonize the electric system at sufficient scale and at reasonable cost. Congress would ideally take action to address the regulatory and economic barriers that currently prevent long-distance, high-voltage transmission from being developed at the necessary speed and scale. But until Congress acts, the U.S. Department of Energy and the Federal Energy Regulatory Commission should use their existing authority to advance transmission development. However, it has become conventional wisdom that development of new long-distance, high-voltage transmission projects is hopeless without new legislation because opponents can exploit veto points created by state laws and state-level institutions involved in transmission siting decisions. As this Article explains, that conventional wisdom is wrong. Congress has already enacted authorities that the federal government can use to counteract siting-related obstacles. To date, those authorities have either not been used or have been used unsuccessfully. In part, this is the result of unfavorable judicial interpretations of those authorities, but those interpretations are not fatal. Given the urgent need for energy system transformation, now is the time for the Department of Energy and the Federal Energy Regulatory Commission to revisit the authorities that they have been given. This Article recommends steps for those agencies to take now that would allow them to side-step the obstacles and revitalize the provisions Congress has already adopted in order to facilitate transmission system development.

Sep 09, 2021
Avi Zevin, Sam Walsh, Justin Gundlach, and Isabel Carey

Realigning the Clean Water Act: Comprehensive Treatment of Nonpoint Source Pollution

Nonpoint source pollution is the biggest threat to water quality in the United States today. This Article argues for stronger federal controls over nonpoint source pollution. It begins by examining the history of water quality regulation in the United States, including the passage and amendment of the Clean Water Act and the evolving definition of “navigable waters” over time. The Article then discusses recent rulemaking and litigation developments, including the Clean Water Rule, the Navigable Waters Protection Rule, and the County of Maui, Hawaii v. Hawaii Wildlife Fund case. It offers three recommendations. First, the Article calls for a congressional amendment to the Clean Water Act to require binding controls on nonpoint source pollution. Second, recognizing that an amendment to the Clean Water Act may not be politically viable, it offers an approach for controlling nonpoint source pollution through an amendment to the Safe Drinking Water Act. Finally, it identifies tools that interested states, local governments, and citizens’ groups can utilize to take action on nonpoint source pollution under existing law. This Article concludes that reductions in nonpoint source pollution will lead to significant improvements in the water quality of our nation’s lakes, rivers, wetlands, and coastal areas, to the benefit of human and environmental health.

Sep 09, 2021
Robin M. Rotman, Ashley A. Hollis, and Kathleen M. Trauth