The Mismatch between Public Nuisance Law and Global Warming

29 Pages Posted: 7 May 2008

Date Written: May 6, 2008


The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.

Keywords: Global warming, climate change, nusiance, public nuisance, federalism, environmental law, greenhouse gas emissions, political question

JEL Classification: K32, K11, K19, K23, K40

Suggested Citation

Dana, David A., The Mismatch between Public Nuisance Law and Global Warming (May 6, 2008). Northwestern Law & Econ Research Paper No. 08-05, Northwestern Public Law Research Paper No. 08-16, Available at SSRN: or

David A. Dana (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-0240 (Phone)
312-503-2035 (Fax)

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