Of Coal, Climate and Carp: Reconsidering the Common Law of Interstate Nuisance
43 Pages Posted: 6 Mar 2012
Date Written: March 6, 2012
This paper argues that the common law of interstate nuisance remains an essential tool despite the rise of the modern regulatory state. In the rare cases when existing regulatory authorities fail to address emerging environmental problems, federal common law can serve as a backstop. When federal regulatory authorities are capable of addressing transboundary problems, but fail to do so, common law actions based on the law of source states remain a viable means of redress for states suffering significant harm from such pollution. Reconnecting the law of interstate nuisance to its historical roots, the paper concludes that the common law has been more effective as a “prod” to the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than as a vehicle for the judiciary to impose its own comprehensive solutions for transboundary environmental problems.
Part I reviews the history of the common law of interstate nuisance from the early twentieth century through the rise of the modern regulatory state. Part II focuses on three contemporary interstate nuisance disputes – North Carolina’s effort to reduce transboundary pollution from power plants operated by the Tennessee Valley Authority, Connecticut’s efforts to reduce greenhouse gas emissions from utilities operating Midwestern coal-fired power plants, and efforts by Michigan and other states to stop invasive species of Asian carp from reaching the Great Lakes. Part III then reevaluates the common law of interstate nuisance in light of these precedents, finding that it still can be an effective catalyst for executive or legislative action to redress transboundary environmental harm.
Keywords: pollution, regulation, transboundary environmental problems
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