Climate Change & the Common Law:

Earlier this week, the U.S. Court of Appeals for the Second Circuit heard oral arguments in Connecticut v. American Electric Power. In this case, several state attorneys general are suing a handful of utilities alleging that the utilities' emissions of greenhouse gases contribute to the "public nuisance" of global warming. This is an innovative use of a traditional, common law cause of action. Nonetheless, I am quite skeptical, as I explained in this 2004 column and this interview. The lower court was also quite skeptical of the suit, dismissing it as nonjusticiable (see story here).

From the accounts I've heard and read, the Second Circuit panel was somewhat skeptical of the state AGs claims. Here the Cato Institute's Jerry Taylor provides a report, along with some libertarian commentary. Taylor thinks the suit is a somewhat welcome development insofar as it represents a greater willingness among environmental advocates to rely upon property rights and common law causes of action (instead of centralized regulations) to address environmental harms. As Taylor also notes here, I've explored the question of how to apply property rights principles to climate change, and my conslusions are not those typically advanced by free market advocacy groups (see here, here, and here).

Freder Frederson (mail):
I find it kind of bizarre that you would think that common law solutions would be applicable to a world wide problem when most of the world (in fact not even all of the U.S.) aren't even common law jurisdictions.
6.9.2006 10:43am
If Judge Sotomayor is that skeptical of the AGs' claims, it would seem that their case is going nowhere. Does anyone know who the other two judges on the 2d Circuit panel were?
6.9.2006 11:11am
JunkYardLawDog (mail):
How would damages be apportioned? What expert is qualified and could get past a Daubert type challenge on apportioning how much damage was suffered by a state and how much of its problems caused by a specific utility as opposed to industrialization in China, India, and the rest of the world. And all this assumes that global warming is really happening or if happening is really happening as a result of man made influences as opposed to the simple fact that the Sun is putting out more heat and not only the earth but mars and other observable planets are warming up during the same period.

What is the damage to a particular state of having its average mean temperature go up 1 degree or 2 degrees in 100 years. Future damages based on an assumed increase of 1 or 2 degrees over 100 years should be too speculative to be awarded. So even if they prove causation and apportionment percentages to the defendants what damage is there from having the average temperature go up by .01 or .02 degrees in the past year?

The attorney generals or any state politician wasting money on these lawsuits should be shot. Any contingency fees for private lawyers bringing these or any kind of mass tort class action lawsuits should be banned permanently.

Says the "Dog"
6.9.2006 12:04pm
frankcross (mail):
Well, you needn't worry about damages, I presume injunctive relief is sought. Although I would agree that this too would be very hard to evaluate under any balancing of the equities.
6.9.2006 12:20pm
Observer (mail):
In Erie, the Supreme Court held that there is no such thing as federal common law, i.e., federal judge-made law. The common law is the law of the states, not the federal government. There are exceptions to this, most prominently in the area of Constitutional law, which can fairly be called a type of common law. And federal courts have, since Erie, created a kind of common law to fill in gaps in federal legislation, e.g., in the bankruptcy and federal tax areas. But absent some statutory or Constitutional base, there is no such thing as federal common law.

So where does this supposed "federal common law of nuisance" come from, apart from the hyperactive imaginations of AG Blumenthal and AG Spitzer?
6.9.2006 3:14pm
Splunge (mail):
Your first link pionts to a very interesting discussion, Mr. Adler. I was most impressed by the contributions therein of Mr. Cordato and Mr. Morris.

In any event, I think you hobble your arguments by failing to examine a key question: from where do these "property rights" of which you speak come? They do not drop from the sky from God, or a magical universal Constitution. In law, perhaps, you are used to an unquestioning acceptance of axioms, such as written law and constitutions. But in real life people don't behave that way. What is axiomatic are not our formal systems but life the way people live it. That is, over the long term, people design their laws and notions of "rights" to suit life the way they live it, not the other way around, however much the latter may occur over the short term.

For myself, I would say property rights are in essence a generic contract between people living in proximity, more or less for the purpose of avoiding the waste of warfare. People say to each other: if you sign on to this bargain, you must agree to lose the following arguments, and in exchange you will be guaranteed to win these other arguments, and furthermore we shall all be spared the uncertainty and costs of warfare between you and those with whom your interests conflict.

Why is this point useful? Because it reminds us that a contract is a bargain between equals. Men make contracts with other men, but not with cows or pigs. That's nature, red in tooth and claw.

However, you've spoken of those who might sue because their property rights have been violated by global warmers (e.g. poor Bangladeshi farmers) as if they are inherently inferior in power to those they might sue. You've implied they are pigs and cows suing men.

This can't be right. Either the Bangladeshi are the equals, more or less, in power to the global warmers, and therefore there exists a contract between them called property rights, or they are not and enjoy no more "rights" than do the elephants and caribou who might suffer from anthropogenic climate change.

If the poor Bangladeshi are essentially equals to the First-World industrialists they might sue, then what is the source of their power? The power to win a war, because there are more of them? The power to economically ruin the industrialist, because they can buy or not buy his product? This needs to be explored, because the exact nature of the latent power of those harmed by global warming is the true and only source of any corrective to the behaviour of those who might cause it.

I think in the end, however, the effort will fail, and for exactly the reasons Mr. Morris suggests: any imaginable chain of causation is just too long and complicated, and implicates far too many people, including local governments and the victims themselves, for the crude machinery of the law to cope with it consistently and usefully.
6.9.2006 3:14pm
frankcross (mail):
Observer, the federal common law of nuisance is pretty well accepted, enshrined by a 1972 USSC decision. I don't think hyperactive imaginations are required.
6.9.2006 3:21pm
Isn't there a tu quoque defense, in that the plaintiffs are also emitting CO2?
6.9.2006 8:06pm
Bottomfish (mail):
The standard example of a "nuisance" claim seems to be the person who sets up a pig farm on his property which generates unpleasant smells, thereby reducing the value of his neighbors' property. It's hard to argue against this claim of harm since no one, or hardly anyone, is going to claim the that the smell of pig**** does not decrease the value of property.

In the PERC discussion that Jonathan Adler cites,someone asks: "If you build a supermarket next to my mom-and-pop grocery and my sales suffer, can I sue you for damages? No. You did something that harmed me, but you did nothing illegal. That's life. Is global warming necessarily different?" The answer (given by Adler) is: "Yes, it is different insofar as there are physical changes to my land." The explanation of the difference between the example of the pig farm and the example of the supermarket is that the pig farm has changed the physical environment of the neighbor's land whereas the supermarket has not.

But it seems to me not at all obvious that in general, the intrinsic value of the property can be so neatly separated from the way it is used. If a farmer feels that a temperature increase has made the land less valuable for growing a certain crop, then maybe he should simply try another crop rather than file a claim.
6.9.2006 8:58pm
Bottomfish (mail):
It is hard to see how the common law nuisance principle can be compatible with the usual defense of private property that land derives its value from being used. Wild land is considered to be without value. It acquires value only by someone clearing trees, plowing, and in general preparing it for farming. This is how the American continent was settled. It's hard to see why a settler would refuse to farm because the soil or climate of his region was not suitable for growing corn and growing wheat was the only readily available alternative.
6.9.2006 10:38pm

Isn't there a tu quoque defense

What's that? A fancy way of saying: your s**t stinks too?


Sometime last year, I am pretty sure it was last year, there was supposed to have been a lawsuit filed by a number of state AG's including CT against the EPA to force it to regulate CO2 as a pollutant.

Is this one related to that?
6.10.2006 12:16am
Frank Drackmann (mail):
How is it China has a billion people and not one World Cup team? Even Costa Rica made it. Not a single decent Rock and Roll band either.
6.10.2006 10:04am
Splunge (mail):
No science Nobel prizewinners, either, excepting the few who were born there and emigrated here.
6.10.2006 2:46pm