Walter Olson
In case after case over the past decade, the federal courts have made it clear that nuisance and tort litigation, especially under state law and in state courts, is a poor fit in addressing the harms of global climate change. The latest of these decisions is City of New York v. Chevron, decided April 1, in which a unanimous panel of the U.S. Court of Appeals for the Second Circuit upheld the dismissal of a municipal lawsuit filed by New York seeking to hold oil companies legally responsible for climate change.
Cato adjunct scholar Andrew Grossman was prescient about the fate of these suits in a Cato podcast three years ago. As I summarized his argument then:
As Grossman notes, the idea of suing over the role of carbon emissions in climate change has by this point been tried many times. The most obvious approach would be to sue large industrial emitters of carbon, which is what some state governments did in one of the most prominent cases, filed against electric utilities. In its 2011 AEP v. Connecticut decision, however, the Supreme Court ruled that such outputs were regulated comprehensively and exclusively at the federal level through enactments like the Clean Air Act, and were not subject to an additional level of state regulation through public nuisance claims. Suits on other theories, such as Comer v. Murphy Oil from the Fifth Circuit and the Kivalina case in the Northern District of California, have been launched “to enormous bombast and press attention and they have all bombed out…. Those cases were the low‐hanging fruit. Those were the more obvious legal theories if you were going to try to bring this kind of case,” he says.
Now the question is whether litigants can accomplish an end run by instead attacking upstream, pre‐emissions activity, specifically the extraction and distribution of fossil fuels destined to be burned. Ambitiously, some of the new suits attempt to apply state common law to activities occurring around the world — to the doings of worldwide corporations such as Royal Dutch‐Shell, for example, and to oil production from places like the coast of Norway and its subsequent use by European motorists. Needless to say, many of these processes are comprehensively regulated by the laws of the European Union and its member countries. Doctrinally, then, the new efforts get into even deeper water (so to speak) than strictly domestic claims.
Even if suits could somehow avoid displacing the sovereignty of foreign countries to make rules within their own borders, there would remain the domestic concerns raised by the political question doctrine. As I wrote back then:
By its nature, global warming is exactly the sort of policy question traditionally entrusted to the political branches: it is wholly unsuited to individualized justice based on links between particularized emissions and particularized effects, its proposed remedies are much disputed and likely to be the result of inevitably arbitrary compromise, sovereign negotiations with foreign actors play a crucial role, and so forth. As the courts have long recognized, one does not generate a case for judicial action simply by piling atop each other the propositions “something needs to be done” and “the political branches have not done it.”
In a couple of more recent panel discussions, hosted by the Rule of Law Defense Fund and the other week by the Law and Economics Center at George Mason, I’ve approached the subject from a different angle: over the long history of nuisance law, Anglo‐American courts have sharply limited its availability as a remedy through a series of interlocking constraints: nuisance must ordinarily involve some sort of property invasion (as of smoke, noise, or wild animals) from which the plaintiff suffers a special injury not falling on the rest of society; the causation must be direct, not indirect (the proprietor of a malfunctioning chimney might be liable, but not the supplier of firewood); the plaintiff should not be itself contributing to the nuisance it complains of; court orders based on specific attribution of responsibility are preferred to those under which the whole populace would be found to have acted wrongfully.
In modern times, some have sought to reshape the old nuisance law into more of an all‐purpose tool by which courts can march here and there correcting a far wider range of claimed externalities. (Litigation itself, not incidentally, is a powerful source of externalities.) But we should listen to the judges both old and new who keep telling us, through the logic of the case outcomes and doctrines, why they are reluctant to go that route.
