Document Type

Article

Publication Date

2008

Abstract

The battle against climate change and its impacts in the United States must be waged on many fronts and requires many weapons. Until the federal government provides a comprehensive and mandatory legislative response to the climate change problem, gap-filling efforts such as regional, state, and local legislative initiatives and climate change litigation will be essential to achieve some progress in the ongoing challenge to combat the causes and effects of climate change. This Article focuses on one of those gap-filling efforts: public nuisance suits against power companies and automobile manufacturers for the climate change impacts caused by emissions from those entities. Part II of this Article discusses the origins of public nuisance doctrine and the evolution of public nuisance claims as a vehicle for environmental litigation. Part III examines climate change as a new context for public nuisance litigation. It considers the political question doctrine as a possible obstacle to public nuisance claims for climate change impacts through an exploration of recent case law, culminating with the district court decision in California v. General Motors. Part IV analyzes preemption arguments and state law public nuisance arguments raised in California v. General Motors. Part V evaluates legal and policy arguments that maintain that public nuisance claims for climate change impacts may be an improper expansion of public nuisance doctrine. The Article concludes, contrary to the district court's conclusion in California v. General Motors, that California's strategy in seeking damages rather than injunctive relief in this case avoids possible political question and preemption pitfalls and is an appropriate and viable avenue for future public nuisance claims seeking recovery for climate change impacts.

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