This Comment takes up two recent conflicting developments: the U.S. Supreme Court’s decision in West Virginia v. Environmental Protection Agency, which was designed to undercut present and future federal climate action, and Congress’ surprising countermove passing climate legislation in the form of the Inflation Reduction Act, which has dramatically accelerated development of the rule of law around climate change in the United States. It suggests that climate creep has taken hold, and that we have entered a new era in the development of climate law that not only limits the ability of the Court to obstruct legal progress, but also creates a firmer foundation for systemwide change.

On the final day of the 2021-2022 term, the U.S. Supreme Court released its decision in West Virginia v. Environmental Protection Agency. The majority (6-3) opinion limited the U.S. Environmental Protection Agency’s (EPA’s) authority to regulate greenhouse gas emissions from power plants under Clean Air Act §111(d), in part by invoking the “major questions doctrine.” The decision has implications for EPA’s authority both to regulate emissions from stationary sources and to regulate greenhouse gases more broadly. It also has implications for administrative law generally, including how the U.S. Congress may delegate regulatory authority to any federal agency. On July 12, 2022, the Environmental Law Institute hosted a panel of experts that considered questions raised by the justices’ opinions, and discussed what the decision will mean for environmental law, administrative law, and EPA’s power to act on climate change.

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. It proposes a federal statutory response: first, establish a Climate Adaptation Priorities (CAP) list modelled after CERCLA’s National Priorities List; second, disburse funds for climate change resilience directly to community groups and local and tribal governments; and third, fund the climate resilience fund with fees on present and historical emissions by fossil fuel companies, as well as a capital gains tax on fossil fuel asset transactions.