Public Nuisance: Public Rights, Private Rights and the Common Good

Abstract

State and federal courts face a rising number of common law public nuisance claims brought by environmental and climate advocates. This paper examines those claims in the context of traditional common law nuisance doctrine with a particular focus on the separation of powers and the role of courts in constitutional democracy. In brief, the paper concludes that public nuisance is an artifact of a time when common law courts performed a police power function that is no longer appropriate given the police power responsibilities of the modern legislative and administrative branches of government.

Keywords: public nuisance, public rights, separation of powers, common law

JEL Classification: K