From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures?

• Citation: Vol. 27 No. 3
• Publication year: 2010

Georgia State University Law Review

Volume 27 , „

t ,c ■ m., Article ³

Issue 3 Spring 2011

3-1-2011

From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures?

Stephen M. Johnson

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Johnson, Stephen M. (2010) "From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures? ," Georgia State University Law Review: Vol. 27: Iss. 3, Article 3. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss3/3

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FROM CLIMATE CHANGE AND HURRICANES TO ECOLOGICAL NUISANCES: COMMON LAW REMEDIES FOR PUBLIC LAW FAILURES?

Stephen M. Johnson*

Introduction

Over the past few years, there has been a minor renaissance in the use of common law actions, especially public and private nuisance, to address environmental problems not being adequately addressed by public law, such as climate change and natural disasters like Hurricane Katrina.¹ Ever since the explosion of public law in response to environmental problems in the 1970s, the common law has provided remedies for personal injury and property damage that are not available under public law, and avenues of relief for problems that were ignored by public law. The common law and public law should not, however, be viewed as alternatives for addressing environmental problems, but as complements. There is an Escheresque quality to the relationship between public law and common law, in that public law continues to evolve in light of developments in the common law, while the common law is

* Associate Dean and Professor, Walter F. George School of Law, Mercer University. B.S., J.D. Villanova University, LL.M. George Washington University School of Law.

1. See, e.g., Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), vacated, reh'g granted en banc, 598 F.3d 208 (5th Cir. 2010), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010); Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009); In re Katrina Canal Breaches Consol. Litig., 647 F. Supp. 2d 644 (E.D. La. 2009); Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D.

Cal. 2009); California v. Gen. Motors Corp., No. C06-05755 MJJ, 2007 U.S. Dist. LEXIS 68547 (N.D. Cal. Sept. 17, 2007); Barasich v. Columbia Gulf Transmission Co., 467 F. Supp. 2d. 676 (E.D. La. 2006).

2. The federal environmental statutes, such as the Clean Water Act, Clean Air Act, and Resource Conservation and Recovery Act, provide for civil and criminal penalties, as well as injunctive relief, but do not authorize courts to award money damages. See, e.g., Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. §§ 1319, 1365 (2006); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6928, 6972 (2006); Clean Air Act, 42 U.S.C. §§ 7413, 7604 (2006). The Superfond law authorizes courts to award "response costs" to plaintiffs but not money damages. See 42 U.S.C. § 9607

(2006).

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influenced, in turn, by developments in public law. Vibrant common law remedies are an essential complement to public law for effective programs to minimize harms to the environment and human health.

Several recent federal court decisions involving nuisance or negligence claims for damages related to climate change and Hurricane Katrina appear, at first blush, to provide strong incentives for an even greater focus on common law to address environmental problems. Private nuisance actions could potentially be used more widely to address destruction or degradation of waters or wetlands that are no longer protected by the Clean Water Act or habitats that are not protected by the Endangered Species Act, or problems created by non-point source pollution, non-hazardous waste management, or locally unwanted land use siting.⁴ Similarly, public nuisance lawsuits could potentially target other actions that contribute to global climate change or address problems that may be caused in the future by nanotechnology, new toxic chemicals, or new uses of existing toxic chemicals.⁵

However, the recent federal court decisions should not be viewed as fundamentally altering the role that common law actions play in protecting the environment and human health. It will still be difficult to rely on the common law to solve these broader environmental problems. The recent decisions removed some jurisdictional and standing barriers to common law actions, but many impediments remain. The primary impediment, which was not significantly affected by the recent decisions, is the difficulty of proving causation in the common law actions.⁶ The recent decisions may have made it easier to bring common law actions but not necessarily to win them. Furthermore, the decisions leave several standing and preemption questions unresolved, so it may not even be easier than before to bring common law actions in some circumstances.

3. See Alexandra B. Klass, Common Law and Federalism in the Age of the Regulatory State, 92 Iowa L. Rev. 545, 547-49 (2007).

4. See infra notes 162-72 and accompanying text.

5. See infra note 173 and accompanying text.

6. See infra Part V.A.

2011] COMMON LAW REMEDIES 567

To the extent that the recent decisions spark an increase in common law litigation to address some of the problems not addressed by public law, though, the litigation could spur legislative changes to the public law. Consequently, the decisions may ultimately have a greater impact on public law than on common law.

Part I of this article explores the role that the common law played in addressing environmental problems prior to the development of a robust public law regime in the 1970s and the changing role of common law as the new regime was implemented. Part II of the article examines the reasons why there has been a renaissance in common law actions and why the trend could continue. Part III of the article discusses the recent federal appellate court decisions that could accelerate the common law renaissance, as well as some other recent federal court decisions that could slow the renaissance. All of these decisions involved harm caused by global climate change, Hurricane Katrina, or both. Part IV of the article identifies environmental problems not adequately addressed under public law that might be the subject of more aggressive common law enforcement if the renaissance continues and discusses the advantages of addressing those problems through common law actions. Finally, Part V explores the continuing limitations of common law that have not been remedied by the recent decisions.

I. The 1970s: The Ascendancy of Public Law

From the dawn of the age of industrialization, the common law developed as a powerful tool to address pollution problems. Private parties and governments sought to combat environmental problems through public and private nuisance, trespass, negligence, and strict liability lawsuits. State and federal courts frequently awarded damages to neighbors of paper mills, refineries, chemical factories, and other industries that were harmed by pollution from those

7. See J.B. Ruhl, John Copeland Nagle & James Salzman, The Practice and Policy of Environmental Law 930-31 (1st ed. 2008).

8. See Klass, supra note 3, at 567.

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activities, or the activities themselves were enjoined.⁹ Although many of the lawsuits were based on state common law, some of the lawsuits involving interstate pollution were brought under federal common law.¹⁰

Over time, however, federal, state and local governments adopted laws and regulations to address environmental problems. Although the trend began with state and local efforts early in the twentieth century,¹¹ public environmental law became ubiquitous with the

₁₂

flood of federal environmental legislation in the 1970s. As public environmental law grew, the number of common law environmental

₁₃

claims declined sharply.

While common law claims declined, neither Congress nor the states sought to fully displace common law remedies by adopting environmental protection statutes and regulations. Indeed, most of the federal environmental statutes include provisions that explicitly preserve more stringent state and local remedies.¹⁴ In some cases, the adoption of federal statutes will eliminate federal common law remedies. For instance, in City of Milwaukee v. Illinois, the Supreme court held that the clean Water Act displaced federal common law

9. See, e.g., City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334 (1933); Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907); McCleery v. Highland Boy Gold Mining Co., 140 F. 951, 95253 (C.C.D. Utah 1904); Steifer v. City of Kansas City, 267 P.2d 474 (Kan. 1954); Susquehanna Fertilizer Co. v. Malone, 20 A. 900, 902 (Md. 1890); Whalen v. Union Bag & Paper Co., 101 N.E. 805 (N.Y. 1913); Morgan v. High Penn Oil Co., 77 S.E.2d 682, 690 (N.C. 1953); Martin v. Reynolds Metals Co., 342 P.2d 790, 794 (Or. 1959); Costas v. City of Fond du Lac, 129 N.W.2d 217 (Wis. 1964).

10. See, e.g., City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304 (1981) (dealing with interstate water pollution); Tenn. Copper, 206 U.S. 230 (addressing interstate air pollution).

11. See Klass, supra note 3, at 567; Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 578-79 (2001).

12. See Klass, supra note 3, at 567; Robert V. Percival, Christopher H. Schroeder, Alan S. Miller & James P. Leape, Environmental Regulation: Law, Science & Policy 88 (6th ed.

2009).

13. See H. Marlow Green, Can the Common Law...