Global Warming and Public Nuisance II

My last blog entry summarized a recent law review article about climate change nuisance suits.  The article's point of view rejected litigation as the appropriate mechanism to address public policy concerns and to dispute policy decisions by the other branches of government.   Language from a professor's summary of his recent article on the same subject, favoring such suits, confirms that not only the effect, but the goal, of such suits is to challenge the policy decisions of the other branches.

The summary is as follows:

The Judicial Carbon Tax: Reconstructing Public Nuisance and Climate Change

Jonathan Zasloff
55 UCLA L. Rev. 1827 (2008)

This Article seeks to reconstruct the public nuisance climate change cases Connecticut v. AEP and California v. General Motors to show that, while hardly perfect, nuisance litigation could form a reasonable basis for climate change regulation, at least as much as some of the other imperfect alternatives so far proposed. This nuisance system has promise because, as outlined here, it essentially becomes a carbon tax-precisely the policy instrument that many economists say is the best form of regulation but is routinely dismissed as politically unfeasible. The difference is that it is judicially, not legislatively, imposed.

I do not claim that the nuisance system is superior to legislation, but rather that it is a reasonable substitute in the absence of political action. More hopefully, I suggest it might provide a basis for getting the political process to respond to the climate crisis. Put another way, we might look at public nuisance litigation as a useful support for political progress. Common law judicial activism, then, does not undermine the democratic process but rather enhances it....

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1113143

The author's candor is refreshing.  As it reflects, the perceived malleability of  a public nuisance cause of action is seen in some quarters as an invitation for judicial lawmaking when unhappy with the laws passed by the legislature.  As noted elsewhere, others take issue with this perspective.  The Rhode Island Supreme Court, for example, in its decision rejecting a lead pigment public nuisance suit (pp. 4-5), emphasized that the role of the court is to adjudicate and enforce the law - not to create it.  http://www.courts.ri.gov/supreme/pdf-files/04-63_7-2-08.pdf