Warming Up the Courts

Last week eight state attorneys general and the City of New York sued five utilities over their contributions to global warming. Writing in TechCentralStation, Jonathan Adler explains how this differs from the tort-based approach to pollution control that many libertarian support:

Nuisance is a longstanding common law cause of action that can be brought against environmental polluters. In one of the earliest nuisance cases, a landowner brought suit against his neighbor who owned a pig farm. The noise and odors of the operation infringed upon the landowner's right to the peaceable enjoyment of his own property and was declared a nuisance by the court. Therefore the pig farmer was required to clean up his operations or move somewhere else. Since then, the law of private nuisance has proven quite effective at addressing many pollution concerns, particularly where one landowner engages in polluting activity that harms the property of his neighbor.

"Public" nuisance, by contrast, involves a polluting activity that interferes with the rights of the community at large. Whereas a private nuisance suit would be brought by an individual landowner, public nuisance suits are typically brought by government officials to vindicate the interests of the local community as a whole. Thus, state attorneys general can, and sometimes have, brought suits against industrial polluters alleging their emissions are harming communities downstream or downwind. Where causation is shown and the nuisance is proved, courts have ordered the polluting companies to pay damages, clean up, or simply shut down.

In this case, Adler notes, "downstream" and "downwind" aren't really relevant concepts. Furthermore, "The state AGs could have targeted facilities in their own states, bringing a series of state-law-based common law nuisance claims, but that would have meant imposing costs at home. The same would be true had the state AGs called for legislation to require significant emission cuts—something few states have done. Instead, they've opted to file suit against utilities in other parts of the country, demanding 'protection' from climate change, while showing no willingness to bear the attendant costs themselves."

In other words—as Adler puts it bluntly on the environmental blog The Commons—"the suit is more about political posturing and trying to force a negotiated settlement with utilities than it is about climate change."