Returning the Common Law to Its Rightful Place

• Date: 01 April 2010
• Author: Tom Mounteer

4-2010 NEWS & ANALYSIS 40 ELR 10361

C O L U M N

who sued ve electric utilities alleging a

public nuisance arising from the utili-

ties’ contribution to global warming.

ey sought injunctive relief requiring

the utilities to reduce carbon dioxide

emissions. e district court, however,

found it lacked jurisdiction over the

claims because the plaintis presented

a nonjusticiable political question that

required a policy decision by either the

legislative or executive branch.

While it took the Connecticut court

three years to hand down a decision,

when it nally spoke, it did so unequiv-

ocally. Until Congress or federal regu-

lators “pre-empt the eld of federal

common law of nuisance” a s it applies

to climate change, “federal courts will

be empowered to appraise the equities

of the suits alleging creation of a pub-

lic nuisance by greenhouse gases.” e

U.S. Court of Appeals for the Second

Circuit found no congressional preemp-

tion either in “Congress’s mere refusal to

legislate” or in the current Administra-

tion’s endangerment nding.8 e latter

has yet to result in actual regulation.

In Comer, the plaintis were private

parties, residents of Mississippi, who

sued energy, oil, rening, and chemical

companies claiming t hat their activities

contributed to climate change and exac-

erbated the damage done by Hurricane

Returning the Common

Law to Its Rightful Place

by Tom Mounteer







author of the Climate Change Deskbook



Many years ago, I had the plea-

sure of having Prof. J.B. Ruhl

as my guest at the annua l

Environmental Law Institute awards

dinner in Washington, D.C. (For those

of you who have not had the opportu-

nity to attend, the dinner is a testament

to the environmental bar’s collegiality.)

At the time, J.B., now the Matthews

& Hawkins Professor of Property at

Florida State Law School, was teaching

at George Washington University Law

School and in the midst of publishing

a series of intriguing law review articles

applying “complexity theory” to envi-

ronmental law.1

I thought of J.B. recently when a pair

of circuit court decisions (Connecticut

v. American Electric Power Co. (AEP)2

and     3),

issued w ithin a month of one another,

reopened the possibility of addressing

the challenge of climate change through

common-law actions under the public

nuisance doctrine.

J.B.’s articles oered many sugges-

tions for “[r]eversing th[e] reduction-

ist inuence” on environmental law,

including “a complete overhaul of our

approach to legislation, administration,

and jurisprudence” so as to “produce a

system that de-emphasizes the regula-

tions attractor by de-emphasizing the

place of codied rules within the sys-

tem.”4 A mong his suggestions, J.B.

called for greater relia nce on the com-

mon law.

Indeed, the rst of his three recom-

mended steps for reversing the “regula-

tory spaghetti in which we nd ourselves

today” was “the return of common law

to its rightful place as our  rst choice

law-based method of establishing and

managing the balance bet ween free-

dom and rights.” For J.B., the common

law’s adaptability, “chaotic qualities,”

and mirroring of “social phenomenon”

made it superior to the “culture of regu-

latory micromanagement in legislation,

administration, and jurisprudence.”

I think the t wo circuit court deci-

sions would please J.B.

Until these decisions, conventional

wisdom had held that the political ques-

tion doctrine barred common-law pub-

lic climate change claims. Conventional

wisdom rested on no less authority than

the U.S. federal district courts that

decided the cases that the circuit courts

reversed.5 (At this writing, it remains

to be seen if the U.S. Court of Appeals

for the Ninth Circuit will follow suit

by reversing the District Court for the

Northern District of California, which

held, at the end of September 2009, that

the political question doctrine barred a

climate change case brought on a public

nuisance theory.6)

e U.S. Supreme Cour t has artic-

ulated numerous formulations of the

political question doctrine, as summa-

rized in the Court’s 1962 “one man, one

vote” decision.7 e formulation that is

most germane to climate change claims

is “the impossibility of deciding without

an initial policy determination of a kind

clearly for nonjudicial discretion.”

Public nuisance claims are primar-

ily claims for the government to assert.

e plaintis in Connecticut were gov-

ernments (specically, eight state attor-

neys general a nd the city of New York)

Tom Mounteer

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.