Global warming and public nuisance

The latest edition of Ecology Law Quarterly (ELQ) has a short but useful discussion of public nuisance global warming suits:  "Global Warming Tort Litigation:  The Real 'Public Nuisance'."

The article, written by two of the defense lawyers in the California nuisance suit against automakers (which the district court dismissed, and is now pending before the Ninth Circuit), summarizes the five nuisance cases filed to date, then discusses why the public nuisance litigation model doesn't fit.

In the latest suit, filed in February 2008, residents of an Alaskan village, represented by tobacco litigation lawyers, allege that global warming is destroying their village, which must be relocated or abandoned.  They allege that the defendants - selected oil companies and electric utilities - have contributed to global warming through emitting greenhouse gases, and that some defendants "conspired to create a false scientific debate about global warming in order to deceive the public."  The complaint asserts state and federal common law nuisance as well as state law civil conspiracy.  Notably, they filed their suit not in Alaska, but California, perhaps deeming it the most friendly to public nuisance suits these days, as well as the home of the market share theory announced in Sindell v. Abbot Laboratories, 26 Cal. 3d 588 (Cal. 1980).

To date, the global warming cases have been dismissed on justiciability grounds, with most courts finding that they presented political questions.  (The conspiracy claim added to the Alaskan village suit might be an attempt to avoid that defense.)

The authors of the ELQ article discuss how the problem with all the global warming suits is that they ask the courts to supplant policy judgments made by the elected branches of government.

Whether this general policy issue is addressed in terms of separation of powers, or preemption, or otherwise, this is the difficulty when parties attempt to take a common law cause of action, public nuisance, freight it with vague parameters, then attempt to use it to make policy.  Courts adjudicate individual cases, based on established principles.  The other branches make policy affecting society on a broad level.  The ELQ authors' observation in the global warming context that adjudication of a public nuisance claim would require courts to balance many competing interests when the political branches have already made their own judgments is equally apt in other contexts in which the public nuisance cause of action has been invoked, such as lead pigment.  Asking a court to override legislative determinations as to what constitutes good policy is asking it to do something that it was not designed to do, and which the public nuisance cause of action was never meant to accomplish.