Author ORCID Identifier

Mark Nevitt 0000-0001-9690-0326

Document Type

Article

Publication Date

2018

Keywords

EPA, Common law, Environmental harm, Public health and welfare, Interstate public nuisance pollution dispute, Clean Air Act, Clean Water Act, Judicial review

Abstract

This Article makes two core arguments. First, it maintains that the common law of nuisance remains an essential backstop when existing regulatory authorities fail to address significant environmental problems. Second, reconnecting nuisance law to its historical roots, the Article maintains that common law litigation has served as an effective prod to help spur the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than serving as a vehicle for the judiciary to impose its own solutions for environmental problems.

This Article proceeds in four parts. Part I reviews the history of the common law of interstate nuisance from the early twentieth century through the rise of the modern regulatory state. Part II focuses on efforts to use this doctrine to control GHG emissions causing climate change, focusing on state efforts to require utilities operating coal-fired power plants to reduce their emissions. These efforts culminated in the Supreme Court's decision in AEP v. Connecticut holding that the CAA displaces federal common law. Part III then considers why AEP does not eliminate common law as a regulatory backstop, as illustrated by the Seventh Circuit's decision that it could be used to address problems not covered by existing regulatory statutes. Part IV then considers how official climate denial could revitalize the common law and return the judiciary to its historic role of responding when the other branches fail to address significant environmental harm.

First Page

441

Publication Title

Washington University Law Review

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