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A New Front Blowing In: State Law and the Future of Climate Change Public Nuisance Litigation

41 Pages Posted: 13 Sep 2012  

Tracy Hester

University of Houston Law Center

Date Written: March 19, 2012

Abstract

While climate change litigation, so far, has been an overwhelmingly federal affair, the U.S. Supreme Court's decision in AEP v. Connecticut has likely foreclosed the possibility of further climate change nuisance actions for injunctive relief under federal common law. The Court, however, pointedly noted that it had not decided whether the federal Clean Air Act would preempt claims under state public nuisance law (as opposed to displacing federal common law).

This article delves into the availability of state laws and courts to hear public nuisance claims against persons or corporations who allegedly contributed to harm caused by climate change. The answer to this question is complex, but illuminating: States have the sovereign power to grant their courts a broader capacity than federal courts to hear claims, including climate change public nuisance lawsuits. In fact, several States expressly provide a broader right of access to courts under their state constitutions or state environmental rights acts, and this expanded scope of competence may arguably extend to public nuisance climate change lawsuits.

The conversion of this broader mandate into an enforceable judgment, however, must navigate several complex steps including state analogs of federal standing and political question doctrines. Even after a state court has decided that it can hear such a claim, it would likely face difficult questions over (i) its ability to exercise in personam jurisdiction over nonresident defendants based solely on climate change effects, (ii) the willingness of courts in other States to enforce a judgment that might conflict with public policy under their own laws, or (iii) the state court’s power to issue and oversee injunctive relief against a governmental defendant. Even if state courts conclude that they can hear these claims under their own laws, federal environmental permitting regimes may still preclude their ability to grant relief.

The stakes, of course, stretch far outside concerns of legal theory and proper jurisdictional doctrines. If state courts provide a more hospitable forum for climate change public nuisance litigation under state laws, the pitched battle over climate change liability could simply shift from a federal forum into a bevy of state court actions that could yield conflicting and overlapping judgments with stacked damage awards and inconsistent injunctive relief. An available forum in state courts for climate change plaintiffs who lack federal standing will also pose difficult questions for those federal courts asked to review state court judgments or to hear diversity claims. These abstract jurisdictional questions could ultimately dictate the fate of multi-billion dollar claims and affect the allocation of power and responsibilities between the federal and state courts in a quintessentially global issue.

Keywords: climate change, nuisance, state law, preemption, displacement

JEL Classification: K32

Suggested Citation

Hester, Tracy, A New Front Blowing In: State Law and the Future of Climate Change Public Nuisance Litigation (March 19, 2012). Stanford Environmental Law Journal, Vol. 31, No. 1, p. 49, 2012. Available at SSRN: https://ssrn.com/abstract=2146082

Tracy Hester (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-1152 (Phone)

HOME PAGE: http://www.law.uh.edu/faculty/thester

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