Air Pollution as Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement with Nineteenth-Century Smoke Abatement.

• Author: Markey, Kate

Table of Contents Introduction I. Where We Are: The Current Status of Climate Nuisance Suits A. The Clean Air Act and Federal Regulation of Fossil Fuels B. Displacement of Federal Common Law C. The Clean Air Act and Preemption of State Common Law D. Procedural Gamesmanship in Climate Nuisance Suits II. Where We Were: Using Nuisance Suits to Challenge the Smoke Evil in the Nineteenth Century A. The Progression of Judicial Thinking in Nuisance Law, 1840-1906 B. "Cleaning Up Pittsburgh for All of Us": Regulation of Smoke in Pittsburgh, 1804-1913 C. Eventual Innovation III. Where We Are Headed: The Value of Public Nuisance in Greenhouse Gas Abatement A. Early Climate Nuisance Suits, Early Smoke Nuisance Suits, and Reaching a Decision on the Merits B. Two Sources of Regulation: Legislation and the Common Law C. The Expressive and Innovative Value of Holding Polluters Accountable Conclusion Introduction

As of September 2021, there were thirteen pending public nuisance lawsuits against major oil companies seeking to abate the harm (1) of climate change. (2) These lawsuits, primarily brought by state and local governments, (3) seek compensatory and equitable relief for the environmental harm caused by climate change. The current wave of public nuisance lawsuits is the latest step in a string of recent attempts to hold oil companies liable in tort. (4) Many legal commentators have argued that while these tort lawsuits initially inspire "enormous bombast and press attention," they all inevitably end up entangled in technicalities of the law and unable to succeed on the merits. (5)

In fact, in May 2021, the Supreme Court published a decision in BP P.L.C. v. Mayor of Baltimore, a case that concerned one such technical hurdle. (6) The city of Baltimore brought the case against twenty-six oil companies to hold them liable for the harm of climate change. (7) On appeal to the Supreme Court, the question presented concerned a narrow, technical issue of federal appellate jurisdiction--specifically, the scope of appellate review of district court orders to remand cases back to state court. (8) The issue in the case seemed inconsequential and minor on its face. But in reality, it arose from a coordinated and calculated project on the part of major oil companies to avoid liability. (9) Together, they are defending against climate change litigation with an array of procedural arguments designed to get lawsuits dismissed before a decision on the merits. The Court's decision in BP P.L.C. v. Mayor of Baltimore has brought these companies one small step closer to shutting the door on climate tort liability altogether. (10) Indeed, for an entire year, some of these thirteen public nuisance lawsuits had been stayed in anticipation of the Supreme Court's ruling in BP, which kept judges from reaching the merits of the underlying tort claims. (11) And while the Supreme Court's ultimate decision did not render these lawsuits void, it added one more procedural hurdle for plaintiffs to overcome.

Today, the detrimental impact of C[O.sub.2] emissions on the health of our planet is clear. (12) Immediate action is needed to reduce fossil fuel production and to keep the global temperature within a safe level. (13) During the Trump Administration, the executive branch rolled back environmental regulations, and the president himself failed to accept the link between climate change and natural disasters. (14) While President Biden has committed to cutting carbon emissions in half by 2030, getting enough congressional votes to codify the proposal into law will be next to impossible. (15) Ultimately, an aggressive attack on climate change would require radical legislation--such as the proposed Green New Deal--and with the filibuster in place, reaching the required sixty votes in the Senate is unlikely. (16)

In the absence of a strong federal response, state and local governments, environmental groups, and concerned citizens have turned to the courts to address the harm of climate change themselves. The past decade has seen an explosion of creative lawsuits using constitutional, statutory, and common law theories to hold our government and the major producers of greenhouse gas emissions accountable. (17) This Comment solely addresses one type of litigation: public nuisance actions against oil companies, shorthanded as "climate nuisance suits."

Public nuisance is a cause of action notorious for its ambiguity. (18) In 1875, legal scholar Horace Wood described it as the "wilderness of law," and in the Restatement (Second) of Torts, William Prosser referred to it as a "legal garbage can." (19) Although each state's definition of public nuisance varies, at its core is the Latin maxim sic utere tuo ut alienum non laedas, or use your own so long as you do not harm another. (20) In modern terms, proving a public nuisance claim requires showing that someone has caused harm that interferes with the public's use and enjoyment of land. (21) Because of its vague, open-ended definition, public nuisance has become the tort of choice for activists challenging widespread societal harm. Public nuisance was the backbone of the successful tort litigation against the tobacco industry, the ongoing litigation against the lead paint industry, and now, against major producers of fossil fuels. (22)

Many critics of current climate nuisance suits accuse plaintiffs of asking courts to use public nuisance in an utterly unprecedented manner, expanding the tort beyond its appropriate, historical bounds to seek redress for a diffuse harm. (23) Without clear precedent, judges presiding over these suits question the ability of the courts to balance the harm of climate change against the economic necessity of producing fossil fuels. (24) To other critics, climate nuisance suits could have merit but are a distraction from other more viable forms of regulation. In particular, the suits draw attention away from the proper venue for making lasting change: using the Clean Air Act (CAA) or similar state-level legislation to regulate fossil fuels more aggressively. (25) By examining the historical use of nuisance law to address air pollution, this Comment refutes these criticisms and argues that climate nuisance suits play a critical role in the abatement of greenhouse gases from our atmosphere.

Using public nuisance to address air pollution is nothing new. In the late nineteenth century, as the United States industrialized, new factories burned dirty coal that polluted cities with dense, black smoke. (26) In response, individual citizens sued factory owners, formed grassroots smoke abatement societies, and lobbied local governments to regulate smoke. (27) As this Comment shows, nuisance lawsuits played an integral role in the eventual abatement of the so-called "smoke evil." (28) Although it is true that no plaintiff in a climate nuisance suit has actually won on the merits, (29) an examination of the historical role of public nuisance in abating air pollution reveals that plaintiffs in similar suits have succeeded on the merits before. Moreover, the historical record shows that public nuisance actions can work symbiotically with other forms of regulation, serving a valuable role in pushing for the adoption of stricter regulation and supporting the development of new abatement technology.

By drawing parallels between smoke nuisance suits and climate nuisance suits, this Comment pushes back against the criticism lodged at climate nuisance suits and highlights three potential benefits of the suits in the fight to abate greenhouse gases: the possibility of success on the merits, the ability to push for stricter federal regulations, and the positive expressive and innovative value of the litigation. Part I discusses the current state of climate nuisance suits percolating through the state and federal courts. Part II looks back at the nineteenth and early twentieth centuries to show the integral role smoke nuisance suits played in the abatement of the smoke evil. Part III compares smoke nuisance suits and climate nuisance suits to highlight the important contributions that climate nuisance suits provide in the movement to abate greenhouse gases.

1. Where We Are: The Current Status of Climate Nuisance Suits

   To date, no court has had the opportunity to consider the merits of a public nuisance claim in any climate nuisance suit. some suits have been dismissed on procedural grounds, while in others, procedural issues are pending before federal and state courts. Part I details how the interaction between the CAA and common law has tied the climate nuisance suits up in a complex web of procedural defenses, preventing courts from reaching the merits on the question of whether oil companies can and should be held liable for damage caused by climate change. Section I.A provides a brief overview of the regulation of greenhouse gases under the CAA. Section I.B outlines the displacement of federal common law by the CAA, while Section I.C explains the uncertainty around the CAA's preemption of state common law. Section I.D details how oil companies have used the law around displacement and preemption to avoid liability in the current wave of climate nuisance suits.

   1. The Clean Air Act and Federal Regulation of Fossil Fuels

      The CAA, passed in 1970, seeks to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare." (30) The CAA was the first comprehensive piece of federal legislation to regulate air pollution in the United States. (31) Before its enactment, the nation had a patchwork of legislation: some individual municipalities had air pollutant ordinances, (32) and all fifty states had a state-specific statute restricting air pollution, most of which were passed in the 1960s. (33) In addition, individual plaintiffs seeking to abate air pollution in their communities brought common law public and private nuisance actions. (34)

      Under the CAA...