State Nuisance Law and the Climate Change Challenge to Federalism

Document Type

Article

Publication Date

2019

Abstract

On Sunday, October 7, 2018, meteorologists noticed a tropical storm forming in the warm waters of the Atlantic Ocean. It was expected to make landfall several days later as a Category 1 hurricane, the lowest level on a five-point scale. But just twentyfour hours before arriving on the Florida panhandle, the storm rapidly intensified, ultimately hitting the coast as a Category 4 hurricane. It was one of the strongest to ever strike the United States. While rapid intensification was once rare, six major hurricanes in the last year underwent the dangerous process before making landfall. More powerful hurricanes are one of the predicted effects of climate change, which scientists now estimate will cause catastrophic impacts by approximately 2040. The private property damages from this event alone are expected to be between $13 billion and $19 billion. Who will pay for the recovery, or countless others like it, in the years to come? And does the judiciary have a role in addressing one of the gravest threats to our society?

Over the past two decades, as the federal government has struggled to respond to climate change, state and city governments have tried to use federal nuisance law to limit the emissions causing global warming. However, in 2007 the Supreme Court found that the Clean Air Act authorized EPA to regulate carbon dioxide. As a result of this decision, in 2011 the Supreme Court held that plaintiffs could no longer seek to curb greenhouse gas emissions from industry under federal nuisance law in American Electric Power v. Connecticut.' The unanimous opinion held that the Clean Air Act displaced the federal common law of nuisance and led to a temporary lull in using the court system to address climate change.

Comments

Work published when author not on Michigan Law faculty.

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