Climate Change Common Law Nuisance Suits: A Legal-Efficiency Analysis

18 Pages Posted: 20 Aug 2019

See all articles by Victor Byers Flatt

Victor Byers Flatt

University of Houston Law Center; University of Houston Global Energy Management Institute

Richard O. Zerbe

University of Washington - Daniel J. Evans School of Public Affairs; University of Washington - School of Law

Date Written: August 17, 2019

Abstract

Multiple common law nuisance lawsuits have been filed against companies to either get them to stop emissions of greenhouse gases or to seek damages for harm from climate change. In American Electric Power v. Connecticut, the United States Supreme Court held that federal common law nuisance lawsuits for injunction of emissions activities were preempted by the Clean Air Act. The viability of state common law nuisance lawsuits, especially for damages, remains an open question, though several lower courts have weighed in on various aspects.

This Article provides an economic analysis showing that common law strict liability damage nuisance lawsuits for climate change damages would increase economic efficiency in all circumstances as well as provide an important incentive for climate change mitigation innovation. Because nuisance determinations can turn on arguments of economic efficiency, we argue that our findings argue for state common law nuisance lawsuits for damages from greenhouse gas emissions to be preserved and allowed to go forward.

Keywords: climate, climate change, climate change litigation, nuisance, common law, economic efficiency, strict liability, regulation, pre-emption

JEL Classification: D61, D62, D63, D81, Q38, Q48, Q52, Q54, Q55, Q58

Suggested Citation

Flatt, Victor Byers and Zerbe, Richard O., Climate Change Common Law Nuisance Suits: A Legal-Efficiency Analysis (August 17, 2019). Environmental Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3438756

Victor Byers Flatt (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-922-0392 (Phone)

University of Houston Global Energy Management Institute ( email )

Houston, TX 77204-6021
United States

Richard O. Zerbe

University of Washington - Daniel J. Evans School of Public Affairs ( email )

Box 353055
Seattle, WA 98125
United States
206-616-5470 (Phone)

University of Washington - School of Law

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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