The “Gift” That Keeps on Giving: Global Warming Meets the Common Law

Abstract

Global warming issues have captured an Oscar, a Nobel Prize and the mainstream media's attention. There is significant consensus in the scientific community that global warming is real, most likely due to anthropogenic sources (traceable to the Industrial Revolution), and that it is likely to cost trillions of dollars in health effects; and loss of property, crops, and species; and adverse effects on national security, as described in great detail by the 2007 Intergovernmental Panel on Climate Change (IPCC) report. Greenhouse gas (GHG) emissions are a wastedisposal method for sectors such as power generation and transportation used to save the cost of waste containment at the expense of effects on ground receptors and the planet. In response to U.S. federal inactivity, states have initiated creative legislative schemes, but the federal government has actively resisted most of these efforts through litigation. States have now filed public nuisance actions utilizing federal and state common law claims to protect those who actually suffer damages. This article explores the revitalized use of the common law as a residual or default tool for public prosecutors and public entities when national policy and statutory remedies prove inadequate. The trial court decisions are on appeal and we argue that they erred on the key constitutional issue of justiciability. Reviewing courts may consider displacement of federal common law as well as preemption of state actions. These cases fuel the debate-even if they are ultimately unsuccessful in the courts, displaced by constructive legislative action, or preempted by disruptive legislation-by (1) providing public information; (2) identifying real costs, liabilities, and exposure for the regulated community, the public, politicians, investors, and regulators; and (3) forcing some action by the legislative or executive branches as a result. We offer trespass as an additional theory to compel the internalization of the real costs of pollution by focusing on all the effects of the invasion of public and private space (i.e. property) once pollutants exit generators' property lines. Trespass may better reconcile the law with science and economics. Scientists understand that they do not know enough about the short and long-term effects of the materials commonly found in the environment. Thus, the current regulatory system permits waste disposal on public and private property without adequate knowledge about the effects of such materials and without provisions for their undetermined future harms. These external social costs constitute market failures that violate free market principles because production costs are passed on to the public (as test subjects) rather than borne by the generators' customers. Public nuisance actions offer one method for efficient internalization of global warming's true costs, while trespass offers yet another theory by accounting for waste at the property boundary. In addition, government may incur liability for a Fifth Amendment taking of receptors' rights by...

If the Tide is Rising, Who Pays for the Ark?

“…Several state Attorneys General, nongovernmental organizations (NGOs), and private parties argue in Connecticut et al v AEC et al that defendants' power plant emissions constitute a "public nuisance" that should be terminated by the court because defendants contribute 10% of U.S. anthropogenic GHG emissions (Cutting and Cahoon 2009). The actions initially sought injunctive relief to stop damaging behavior and to correct effects, although many observers expect that damage claims will also be added to remediation costs.…”

“…The actual trading system is working, and speculative investing (including those polluters banking against future price increases) is an important force along with compliance trading. Observers note that: (1) caps can be manipulated for political purposes, as were the first round European Union measures, and future standards are still in play; and (2) true market auctions are not used, but an allocation system that can skew the market (European Commission on Environment, Emissions Trading System 2010; Cutting and Cahoon 2009;Ellerman and Jaskow 2008). While they attempt to reduce future damages, none of these international efforts addresses the central question, however, which is: "Who pays for the damages incurred now and in the future?…”

“…Replacement legislation could easily provide a mechanism to discover, mitigate, and compensate the effects of any permitted pollution. To avoid Takings liability, quantification of risk and adequate security would be essential (Cutting and Cahoon 2009). The statutes could also be declared unconstitutional for interference with the Public Trust, or the grant of emissions rights could be voided (Ill.…”