Climate Change as Public Nuisance

In case you missed it, the New York Times summarized the Supreme Court case on climate change as a public nuisance, oral argument scheduled for April 19th. Several states and conservation outfits have sued carbon-intensive utilities under federal common law alleging that the companies are behaving as a public

There are a variety of hurdles to the lawsuit. Paramount among these is the contention that by creating the Clean Water and Clean Air Acts, Congres has preempted the judiciary's authority to hear environmental cases. Before the passage of the afore mentioned statutes, environmental regulation was largely fashioned by the courts in an ad hoc process. Plaintiffs would prove that a polluter was damaging their land and sue (private nuisance). In cases of wide-spread damage, public officials might initiate suit for the good of the community (public nuisance). The common law provided for relief fashioned for the two parties before the judge, who possessed a wide array of tools to mitigate, enjoin, or compensate the parties as eh or she saw fit. Plaintiffs would be able to recover damages directly from the polluters, allowing the injured party to rectify specific harms. Because pollution became so widespread and a cause for national concern with the publication of Silent Spring (Rachel Carson, 1962). While environmental regulation proceeded in a piecemeal fashion, the public demanded an active federal agency to prevent environmental abuses, protect endangered species, and restore spoiled land for public use. Federal environmental regulations originated in an attempt to augment and standardize existing the pollution control regime both among the states and the courts.

The states are often called the laboratories of democracy, but the courts are less often credited as the petri dishes of policy.