Public Nuisance Claims for Climate Change Impacts:

1. 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

2. Public Nuisance: Tort Law and Environmental Law • 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?

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

4. 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? The Elusive Federal Common Law:Interstate Water and Air Pollution Claims

5. Connecticutv. 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

6. 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 California v. General Motors

7. 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

8. 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?

9. 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

10. 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

11. 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

12. The End Questions? Comments? Prof. Randall S. Abate rabate@fcsl.edu