Litigation
Wildfire Liability in California: A Primer
California has a unique approach to lawsuits against utilities for causing fires.
Like other states, California allows wildfire lawsuits against utilities based on negligence. When a plaintiff can prove that the utility was negligent – in other words, failed to exercise reasonable care – plaintiffs can recover for environmental damage, reforestation costs, and loss of profits. But California also allows recovery even when a utility did nothing wrong, under a theory called inverse condemnation. The PG&E bankruptcy made it clear that no-fault utility liability could threaten the financial health of the power system. The legislature created a new fund to deal with the problem.
CONTINUE READINGThe Downsides of Ping Pong Governance
Judicial review, by moderating policy swings, may be important to facilitating long-term investment
I’ve written about debates over permitting reform and other versions of regulatory streamlining to support the development of infrastructure that we need to address climate change. Another view, well articulated by Nicholas Bagley at University of Michigan, is that the problem is more fundamental: Excessive focus on governmental procedures and process, reinforced by searching judicial …
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CONTINUE READINGThe Top-Ten Lower Court Decisions on Environmental Law
Don’t let the headlines deceive you. It’s not just the Supreme Court that shapes environmental law.
The Supreme Court tends to get all the attention, but for every Supreme Court opinion on environmental law there are probably fifty opinions in the lower federal courts. Collectively, the lower courts have done fat least as much to shape the law than the Supreme Court’s occasional interventions.
CONTINUE READINGPresidential Blitzkrieg: Good Tactics, Questionable Strategy
Flooding the zone has short-term benefits but possible long-term costs.
Trump has issued a flood of executive orders. Many of those actions relate to energy and environment, with the general intent of handicapping clean energy and promoting fossil fuels. Flooding the zone has undoubtedly helped him dominate the news and may have stunned opponents. But shirt-ternm success doesn’t always translate into long-term gains.
CONTINUE READINGCrisis at DOJ’s Environment & Natural Resources Division
Guest contributors Sommer Engels, Andrew Mergen, and Justin Pidot write that dismantling ENRD will be disastrous for future administrations, the American people, and even for the Trump Administration.
The Environment and Natural Resources Division (ENRD) of the Department of Justice faces its most profound crisis since it was established in 1909. In a little over a week, the Trump administration has (1) reassigned four career managers (leading nearly half of ENRD’s sections) to the newly formed Office of Sanctuary Cities Enforcement; (2) placed …
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CONTINUE READINGThe Green-State Playbook
Here are five ways states can save climate policy despite Trump.
Trump’s election is a body blow to U.S. climate policy, but there are ways that those states can fight Trump and move forward on their own plans. To cut to the chase, here are five key strategies for green states — starting with lawsuits against the Trump Administration, which were highly successful in Trump’s first term.
CONTINUE READINGLitigating Against Trump
Trump’s agencies had a terrible litigation record the first time. It will probably get better – but not that much better.
In his first term, Trump’s litigation record was awful – winning only one case in four by some estimates.The Trump folks should do a better this time. But they may not improve that much, and could still lose more often than they win. Money invested in litigating against the Administration will be well spent. Meticulous attention to evidence and legal requirements is likely to remain a weak point.
CONTINUE READINGCollecting useful data on NEPA
A 2024 study falls fall short in shedding light on the impacts of NEPA litigation
As I’ve recently posted, permitting reform is (appropriately) in the news right now. That means there’s also a reason for various think tanks, NGOs, academics, and others to release studies that might inform the policy debate. One such study from 2024 that has gotten some coverage on social media recently is a report by the …
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CONTINUE READINGHuge Snub for Big Oil at the Supreme Court
Oil companies failed to persuade the justices to shield them from the growing number of state lawsuits seeking damages for the harms caused by climate change.
Big Oil has failed to persuade the U.S. Supreme Court to shield it from numerous state climate lawsuits filed across the country seeking damages for the harms caused by climate change — harms like the historic, supercharged urban fires burning in Los Angeles. The justices held a conference on Friday, January 10 to determine whether …
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CONTINUE READINGWhat to Expect When You’re Expecting Trump: Looking Ahead to 2025
Before even taking office, Trump has confirmed that “normality” is out the window.
Trump’s strategy involves appointing inexperienced administrators and to alienate or eliminate the experienced public servants who could help them implement their policies effectively.The good news is that Trump has not learned the lessons of his first administration and continues to think that ideology and bravado can substitute for competence. The courts are likely to tell him otherwise.
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