Is Public Nuisance a Tort?
Thomas W. Merrill
Columbia University - Law School
May 2, 2011
Columbia Public Law Research Paper No. 11-272
Public nuisance law has recently been invoked in social reform litigation addressing tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of features of public nuisance law that were well established before the Restatement (Second) of Torts sought in the 1970s to transform public nuisance into a species of tort liability. If public nuisance is properly regarded as a public action, it follows that legislatures rather than courts are the proper institution to identify the circumstances in which public nuisance liability exists, as well as who has authority to institute a public nuisance action. Consequently, recent invocations of public nuisance law as an instrument of social reform suffer from a delegation deficit. Existing public nuisance statutes, which were adopted years ago with a different order of social problem in mind, should be interpreted non-dynamically, in order to preserve the principle that public actions must be grounded in enacted law rather than a claim of common law authority.
Keywords: Public Nuisance, Tort, Global Warming, Restatement of Torts, Public Actionworking papers series
Date posted: May 2, 2011
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