42 Pages Posted: 8 Mar 2007
This article argues that courts should allow defendants, held liable for contributing to the state common law public nuisance of global warming, to comply with a judicial abatement order with the use of emissions offset credits purchased or otherwise obtained from third parties. Such an option would be in contrast to the usual remedy in a public nuisance suit: changes, by the defendant, to its own operations in order to abate its contribution to the public nuisance. In addition to the benefit of cost-effectiveness, I argue that this option could trigger a greenhouse gas emissions trading market. Such a market could function until such time as a federal regulatory program is enacted. Given that the federal program is likely to allow emissions trading, the market would enhance the success of the subsequent regulatory program.
Keywords: climate change, tradable emissions credits, states, litigation, public nuisance, common law, greenhouse gases, utilities, California, federal regulation
JEL Classification: K13, K32
Suggested Citation: Suggested Citation
Engel, Kirsten H., Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies. Arizona Legal Studies Discussion Paper No. 07-10; University of Pennsylvania Law Review, Vol. 155, p. 1563, 2007. Available at SSRN: https://ssrn.com/abstract=968990