Easier Said than Done: Displacing Public Nuisance when States Sue for Climate Change Damages
10 Pages Posted: 19 Feb 2011 Last revised: 19 Oct 2014
Date Written: February 17, 2011
The White House, through the Solicitor General, has requested that the Supreme Court remand American Electric Power (AEP), the leading case on public nuisance applied to climate change, to the Second Circuit to conduct, inter alia, a displacement analysis (Part I). With momentum in favor of displacing the Federal common law of nuisance with respect to States’ suits for climate change damages, it would behoove us to take a good look at what the law of displacement requires of the courts. The central question here is whether the common law of public nuisance should be displaced. My short answer is, contrary to prevailing opinion, no.
Displacing the cause of action which would allow remedies for climate change damages to be available from the courts is a top priority of climate change deniers as well as those who believe the Congress or the EPA should be in charge of all things related to US climate policy. Yet the evidence for climate change is mounting, and neither Congress nor the EPA has grasped the nettle. This paper argues that the law of public nuisance should remain a viable avenue for States’ Attorneys General to limit major emissions contributing toward climate change damages.
Displacement is not as simple an inquiry as the literature and the Solicitor General’s brief would suggest. The displacement test itself is unduly complicated and should be reformulated into a stricter test (Part II). The extant reasoning from the Supreme Court in Milwaukee II fails to fully capture the complexity of the displacement context when the Plaintiff is a quasi-sovereign (Part III). The displacement test is exceptionally tricky to apply when the common law at stake is that of public nuisance (Part IV). AEP provides the Court a chance to assess the Judiciary’s role in the separation of powers in the context of Federal responses to climate change. Even if adequate legislative or regulatory responses to climate change were implemented, there may still be important roles for the judiciary to play in the United States response to climate change aside from barring the States from protecting their own property and public health (Part V).
* As predicted, the Supreme Court's decision on June 20, 2011 turned on the issue of displacement. I would not concur until after the U.S. EPA issued notice of carbon dioxide performance standards for new stationary sources on March 27, 2012.
Keywords: climate change, displacement, American Electric Power, federalism, separation of powers
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