Public Nuisance and Climate Change - News from the Front

Superficially, tort law and climate change seem perfectly matched.  Current cases seek to strike a "balance" reminiscent of earlier product liability cases, claiming that, as between the "victims" of climate change and the major emitters of greenhouse gases, the emission sources should bear the costs of climate change.  Allegedly, the sources are in a better position to absorb such costs and, unless liability is assessed, there is no incentive for the sources to discontinue their harmful emissions.  Theoretically, by placing the costs of climate change on corporations, these costs will become a cost of doing business, raising the price of fossil fuels, which in turn will promote alternative energy sources and energy efficiency, thereby reducing greenhouse gas emissions.  

As long as there is a perceived lack of action to directly address the climate change problems, plaintiffs' attorneys are increasingly willing to sue the sources they believe are responsible for creating the problem.  As we have written in recent articles, however, there are significant obstacles to the use of public nuisance theories in climate change litigation - and those arguments are threshold considerations that must be addressed before the merits of the claims are considered.   These arguments include judicial competence, standing, and the political question doctrine - all of which have, so far, convinced courts to find themselves ill-suited to entertain climate change controversies.  See Faulk and Gray, Defending Climate Change Litigation, 29 Andrews Env. Lit. Rept. 1 (Aug. 6, 2008), available at http://works.bepress.com/richard_faulk/16/.    For a more detailed discussion of climate change science and legal issues, including public nuisance concerns, see Faulk and Gray, Stormy Weather Ahead?  The Legal Environment of Global Climate Change, available at http://works.bepress.com/richard_faulk/2/.