The Environmental Litigation Landscape in 2025
Environmental litigation encompasses everything from CERCLA cost recovery actions between potentially responsible parties to Clean Water Act citizen suits, National Environmental Policy Act challenges to federal projects, and the rapidly developing field of climate liability litigation. Each area has distinct doctrinal frameworks, but all share a characteristic: they involve complex scientific and technical evidence that must be translated into legal claims, making them particularly demanding and high-stakes for the attorneys involved.
CERCLA Cost Recovery: The Allocation Battle
CERCLA (the Superfund law) generates extensive litigation over cost recovery and contribution among potentially responsible parties (PRPs). The primary strategic questions in CERCLA cases:
- Divisibility: A PRP that can demonstrate that its contribution to contamination is divisible from other PRPs' contributions can limit its liability to its own share. The scientific evidence burden for divisibility is high but achievable with strong technical support.
- Equitable allocation: In § 113(f) contribution actions, courts allocate response costs among PRPs using equitable factors. The "Gore factors" — volume of hazardous substances, toxicity, involvement in disposal, care exercised, cooperation — are the primary allocation variables, but courts weight them differently and their application to specific facts is often genuinely uncertain.
- Arranger liability: Burlington Northern's limitation of arranger liability has been applied inconsistently by lower courts. Cases involving indirect arrangements for disposal of hazardous substances remain an active litigation front.
Clean Water Act Citizen Suits: Procedural and Substantive Patterns
CWA citizen suits require 60-day notice to the alleged violator and the government before filing. Courts have been fairly strict about notice requirements — defective notice letters are a significant source of early dismissals. The notice letter must identify the specific violation with enough specificity that the defendant knows what it's alleged to have done wrong.
On the merits, citizen suit success rates vary significantly by violation type. Permit exceedance cases — where the defendant's own discharge monitoring reports show violations — succeed at very high rates because the evidence comes from the defendant's own records. Cases alleging unpermitted discharges, or challenging permit conditions as insufficient, involve more complex legal and factual disputes with lower plaintiff success rates.
Climate Liability Litigation: The Emerging Front
State tort climate liability cases — filed by states and municipalities against major fossil fuel companies — have become one of the most contested battlegrounds in environmental law. The central legal question of whether these state tort claims belong in state court (where plaintiffs prefer to be) or federal court (where defendants seek removal) has generated conflicting circuit decisions and will ultimately require Supreme Court resolution.
The substance of climate liability claims — whether defendants can be held liable in tort for their contribution to climate change — remains largely unresolved on the merits in any jurisdiction. These cases are at the frontier of both tort doctrine and the political question doctrine.
NEPA Challenges: Timing and Remedy
National Environmental Policy Act challenges to federal agency decisions require demonstrating that the agency's environmental review was inadequate — failed to analyze a required alternative, understated environmental impacts, or violated procedural requirements. NEPA litigation outcome patterns show:
- Challenges to EIS (full environmental impact statement) adequacy succeed more often than challenges to finding of no significant impact (FONSI) determinations — courts give EIS documents substantial deference
- Procedural violations are more reliably remanded than substantive ones — courts are more comfortable telling agencies they followed the wrong procedure than that they reached the wrong substantive conclusion
- Remedy (vacatur versus remand without vacatur) is often the most contested question — courts have developed inconsistent approaches to when to leave a challenged agency action in place pending remand