Flatt and Zerbe, ‘Climate Change Common Law Nuisance Suits: A Legal-Efficiency Analysis’

ABSTRACT
Multiple common law nuisance lawsuits have been filed against companies to either get them to stop emissions of greenhouse gases or to seek damages for harm from climate change. In American Electric Power v Connecticut, the United States Supreme Court held that federal common law nuisance lawsuits for injunction of emissions activities were preempted by the Clean Air Act. The viability of state common law nuisance lawsuits, especially for damages, remains an open question, though several lower courts have weighed in on various aspects.

This Article provides an economic analysis showing that common law strict liability damage nuisance lawsuits for climate change damages would increase economic efficiency in all circumstances as well as provide an important incentive for climate change mitigation innovation. Because nuisance determinations can turn on arguments of economic efficiency, we argue that our findings argue for state common law nuisance lawsuits for damages from greenhouse gas emissions to be preserved and allowed to go forward.

Flatt, Victor Byers and Zerbe, Richard O, Climate Change Common Law Nuisance Suits: A Legal-Efficiency Analysis (August 17, 2019). Environmental Law, forthcoming.

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