Climate impacts in the United States disproportionately fall on low-income communities and communities of color. As the costs of climate adaptation mount, municipalities and states have brought litigation against fossil fuel companies to recover for extensive damage caused by climate change. Drawing on lessons from previous tobacco and asbestos suits, this Article argues that damages litigation—while properly heard in state courts—has significant shortcomings as an equitable climate change adaptation strategy.

On February 28, 2022, the U.S. Supreme Court heard oral arguments for the landmark West Virginia v. EPA case, involving the scope of powers delegated to the U.S. Environmental Protection Agency (EPA) through the Clean Air Act. The Court’s decision will affect administrative law, and could have major consequences for environmental law, particularly the Agency’s power to regulate greenhouse gas emissions and take action on climate change.