Project Report:
Climate Litigation Initiative
- Investigates causes tending to destroy or impair the free-market system.
- Explores and develops market-based solutions.


The explosion in U.S. shale gas and shale oil has caused an unprecedented building spree of oil and gas pipelines. Our concern is that massive investment in natural gas (and to a lesser extent, crude oil) infrastructure may become the largest impediment to transitioning to zero-carbon. One of the ways to prevent this is by curtailing the ability of pipeline companies to use eminent domain to take property (or interests in property). Because Niskanen has a strong commitment to free market principles and the protection of property rights, it is perfectly situated to lead such legal efforts. In addition, Climate-related litigation has had a major impact on public policy. Currently, the most promising legal avenue is using common law suits in state courts to force fossil fuel companies to compensate property owners and taxpayers for climate-related damages.


At Niskanen Center, we are convinced that climate change is real, that it is caused by human activity, and that it poses significant risk. While we acknowledge that global warming can produce a wide range of possible outcomes—from modest to catastrophic—we believe that any reasonable risk management response points toward rapid decarbonization. Accordingly, we educate policy actors about climate science and directly confront climate skeptics while also promoting ambitious, market-oriented policy responses to climate change.

Niskanen is perfectly positioned to engage in this legal work because many libertarians and hardline conservatives have long argued that disputes surrounding pollution are often best handled via common law tort liability than via legislation and regulation (which leaves individual rights and property rights hostage to political considerations regarding the public good).


Niskanen is now litigating in three cases concerning whether the Federal Energy Regulatory Commission's natural gas pipeline approval process violates the Fifth Amendment’s Due Process and Takings Clauses.

At the state level, Niskanen's efforts center around state-by-state efforts to convince courts that oil pipelines are not a "public use," as required by the Fifth Amendment and almost every state constitution.

Niskanen is co-counsel (with Earthrights International) in the first such case to be brought in a "purple state" (Boulder County et al. v. Suncor et al.), which is also the first case where the impacts beyond sea-level rise, e.g., drought, wildfires, flooding from extreme precipitation, etc., will be front and center.

Amount Approved
$15,000.00 on 12/18/2018 (Check sent: 12/21/2018)

820 1st Street NE, Suite 675
Washington, DC 20002

(202) 899-1161

Posted 11/30/2018 1:55 PM
Updated   4/24/2019 4:07 PM

  • Nonprofit

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