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A new wave of “failure to adapt” lawsuits has sought to clarify how a changing climate may change what reasonable preparations governments and private actors must take, including increasing the resilience of their infrastructure. These suits span constitutional, tort, and statutory law more broadly, but unprepared owners of energy infrastructure may risk additional violations under environmental law due to unpermitted releases of air and water pollution during extreme weather events for which they are not adequately prepared. This piece will specifically consider recent legal and administrative suits that may indicate shifting legal responsibilities for coastal and riverine energy infrastructure owners under the Clean Water Act (CWA), the Resource Conservation & Recovery Act (RCRA), state air and water codes, and the National Environmental Policy Act (NEPA). Even if redress is unavailable to plaintiffs, these suits help clarify where the current regulatory regime does obligate consideration of changing conditions and where regulatory reform could reduce climate change related risks to communities and the surrounding environment.


Environmental Law | Law