Could Official Climate Denial Revive the Common Law as a Regulatory Backstop?

55 Pages Posted: 15 Mar 2018 Last revised: 5 Dec 2018

See all articles by Mark Nevitt

Mark Nevitt

University of Pennsylvania Law School; Georgetown University - Center on National Security and the Law

Robert V. Percival

University of Maryland - Francis King Carey School of Law

Date Written: 2018

Abstract

The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as litigants, including states and their political subdivisions, return to the common law to protect the health of the planet. Prior to the emergence of the major federal environmental laws in the 1970s, the common law of nuisance gave rise to the earliest environmental decisions in U.S. history. In some of these cases the Supreme Court issued injunctions to control significant sources of air and water pollution, but the Court later held that the Clean Water Act and Clean Air Act displaced the federal common law of nuisance.

This Article argues that official climate denial may yet revive the common law as a regulatory backstop. If EPA reverses its earlier endangerment finding for greenhouse gas emissions, the Clean Air Act no longer would displace the federal common law of nuisance. While expert administrative agencies normally are more competent than the judiciary in fashioning regulatory policy, agencies that deny climate science should expect to face judicial intervention. As described in this Article, such action is consistent with the historic role the judiciary has played when other branches of government failed to prevent significant environmental harm.

Keywords: Environmental law & policy, regulation, climate change, anthropogenic global warming, AGW, greenhouse gas emissions, GHG, torts, public nuisance, interstate nuisance, Clean Air Act, CAA, AEP v. Connecticut

Suggested Citation

Nevitt, Mark and Percival, Robert V., Could Official Climate Denial Revive the Common Law as a Regulatory Backstop? (2018). Washington University Law Review, Vol. 96, Pg. 441, 2018; U of Penn Law School, Public Law Research Paper No. 18-7. Available at SSRN: https://ssrn.com/abstract=3140758

Mark Nevitt (Contact Author)

University of Pennsylvania Law School ( email )

Philadelphia, PA 19104
United States

Georgetown University - Center on National Security and the Law ( email )

600 New Jersey Avenue N.W.
Washington, DC 20001
United States

Robert V. Percival

University of Maryland - Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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