Tuesday, May 20, 2008
David Dana (Northwestern) recently posted "The Mismatch Between Public Nuisance Law and Global Warming" on SSRN. From the abstract:
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.
Over at Legal Theory, Larry Solum provides his comments on Dana's thesis.
On a related note, the June issue of The Atlantic has an article by Stephan Faris titled, "Conspiracy Theory," which explores the global warming litigation filed by the Alaskan city of Kivalina. (Via Walter Olson at Overlawyered; Olson also links to other reports on the suit). As noted back in February, Kivalina has filed suit against 20 oil, electric, and coal companies. The village, which is being forced to relocate because of flooding caused by global warming, accuses the companies of creating a public nuisance and also of conspiracy.