Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies

Abstract

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