Public Nuisance Claims for Climate Change Impacts: Preemption, Political Question, and Foreign Policy Concerns Prof. Randall S. Abate Florida Coastal School of Law October 19, 2007

Pre-1970: Public nuisance: a mechanism to seek recovery for environmental harms 1970s and 1980s: The boom period of federal environmental statutory regime The Modern Era: Public nuisance as a: –gap filler for statutory claims –weapon of choice for climate change litigation? Public Nuisance: Tort Law and Environmental Law

Public Nuisance Claims and Climate Change: Three Contexts Federal Common Law Clean Air Act Climate Change Litigation and the Lack of a Congressional Response

The Elusive Federal Common Law: Interstate Water and Air Pollution Claims Georgia v. Tennessee Copper Company (1907) Public nuisance cases for interstate air pollution Is there a federal common law of public nuisance for claims involving global warming?

Connecticut v. American Electric Power Theory of the Case –8 states vs. 5 power companies –Seeking injunctive relief District Court Decision –Courts vs. Congress –Domestic vs. International

California v. General Motors Theory of the Case –California Global Warming Solutions Act already in place –Sued the six largest automobile manufacturers in the nation –This public nuisance suit as a gap filling mechanism for more immediate and aggressive relief Injunctive Relief vs. Damages

Obstacles to Success: Political Question Doctrine Should the courts be involved in crafting federal environmental policy without an “initial policy determination” from Congress? Does it matter whether the public nuisance suits seek injunctive relief or damages? –power plants case –auto case

Obstacles to Success: Preemption Conflict Preemption (CAA) Field Preemption (EPCA) Massachusetts v. EPA: Help may be on the way, but would it preempt these suits?

Massachusetts v. EPA: Friend or Foe to Public Nuisance Cases? Court ruling on EPA authority: paving the way to an overdue mandatory regime The rulemaking process to implement the decision will not be finished until January 2009 at the earliest Harm from climate change impacts has occurred and will continue to occur

Public Nuisance and Climate Change: The Big Picture Another weapon to fire at Congress to inspire an effective federal legislative response to the climate change problem –State, regional, and local legislative initiatives –Voluntary “over compliance” in the regulated community –Other climate change litigation cases Are these public nuisance suits an improper expansion of the foundations of public nuisance doctrine? Symbolic and substantive value of these suits

On the Cutting Edge On September 17, 2007, the United States District Court for the Northern District of California granted the auto manufacturers’ motion to dismiss in California v. GM The Second Circuit’s decision in the power plant case is due to be released any day now! February 2008 issue of Connecticut Law Review

The End Questions? Comments? Prof. Randall S. Abate