Easier Said Than Done: Displacing Public Nuisance When States Sue for Climate Change Damages

• Date: 01 April 2011

41 ELR 10316 ENVIRONMENTAL LAW REPORTER 4-2011

C O M M E N T S

Easier Said Than Done: Displacing

Public Nuisance When States Sue

for Climate Change Damages

by John Wood

John Wood is a J.D. candidate, New York University School of Law (2011).

Like a tripartite juggernaut, all three branches of the

U.S. federal government are actively grappling with

climate change in kind: legislation from the U.S.

Congress; regulation from the U.S. Environmental Pro-

tection Agency (EPA); and litigation in the judiciary a ll

may come to bear on carbon emissions as a c ausal genesis

of climate change. When a ll three branches of the federal

government concurrently engage in questions of the same

subject matter, interesting separation-of-powers concerns

are implicated. In particular, climate change litigation

has implicated the doctrine of displacement. Displace-

ment has been raised as a procedura l defense to suit under

the federal common law of nuisance. Intuitively, a federal

common-law cause of action for, say, pollution should

be displaced whenever either of the other two branches

has adequately dealt with the pollution problem. at is,

requiring a defendant to comply with a court order when

it is already in compliance with legislation or regulation on

the matter would both be onerous for the defendant and

would trammel on congressional or executive authority.

Not only separation-of-powers principles but institutional

competency concerns militate in favor of displacing fed-

eral common-law causes of action regarding subject matter

with which either of the other two branches has already

dealt. If the federal common law of public nuisance for

carbon emissions is displaced by legislation from Congress

or regulation from EPA, then carbon emitters have repose

from federal common-law liability as long as they are in

compliance with the legislative or regulative requirements.

Unfortunately, the law of displacement, when applied to

a case brought by states under the federal common law

of public nuisance, is not nearly as straightforward as the

foregoing sketch would suggest. What we might initially

consider to be a narrow procedural issue is, upon further

analysis, extremely thorny.

 ()1 is

the most signicant federal environmental case2 since Mas-

 .3 Decided by the U.S. Court of Appeals

for t he Second Circuit on September 21, 2009, the case

involves the basic a llegation4 that defendant coal-powered

utility companies emit carbon dioxide (CO2) at levels that

contribute to global warming,5 which caused and will cause

further damage to human health and natural resources.6

e causal chain is spelled out as:

[C]urrent injury as a result of the increase in carb on diox-

ide levels that has a lready caused the temperature to rise

and change their cl imates; deva stating f uture injury to

their property from the continuing, i ncremental increases

in temperature projected over the next 10 to 100 years;

and increased risk of harm from global warming, includ-

ing an abrupt and catastrophic change in climate when a

tipping force of radiative forcing is reached.7

1. 582 F.3d 309, 39 ELR 20215 (2d Cir. 2009) [hereinafter ].

2. Other common-law nuisance and tort claims concerning climate change

include   , 607 F.3d 1049, 40 ELR 20147 (5th

Cir. 2010), , 663 F. Supp. 2d

863, 39 ELR 20236 (N.D. Cal. 2009), and  

Corp., No. C06-05755, 37 ELR 20239 (N.D. Cal. 2007). Cases concerning

whether the Clean Air Act (CAA) applies to climate change and whether

it preempts state eorts include  , 549 U.S. 497, 37

ELR 20075 (2007), Central Valley Chrysler-Jeep Inc. v. Goldstone, No. CV-

F-04-6663, 37 ELR 20309 (E.D. Cal. 2007), and Green Mountain Chrysler

, F. Supp. 2d 295, 37 ELR 20232 (D. Vt.

Sept. 12, 2007).

3. See Mas sachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007). Sinc e

the U.S. Supreme Court in the foregoing case enjoined EPA to regulate

greenhouse gases (GHGs), it c ould be argued that  i s on a cr ash-

course with Massachusetts. Of course, EPA has yet to ac tually r egulate

carbon dioxide (CO2) emissions. Nonethele ss, that concern is beyond the

scope of th is Article.

4. Another way to style the causal allegation is that CO2 levels are the pre-

cipitating cause of climate change. Because CO2 is a GHG, I will usually

hereafter refer to the pollutant in dispute as GHG emissions.

5. e specic allegation is that global warming is a public nuisance. I refer

to the “evil” of the lawsuit as “climate change,” “GHG emissions” or “CO2

emissions” hereafter since “global warming” can be a misleading term to

describe the eects of anthropogenic planetary heating (erratic weather pat-

terns generally).

6. See , 582 F.3d at 314.

7. See id. at 317 (internal quotations omitted).





  



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