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Johnson on Common Law Remedies for Public Environmental Law Failures

By Lawrence Solum

Stephen M. Johnson (Mercer University Law School) has posted From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures? (Georgia State Univeristy Law Review, Forthcoming) on SSRN. Here is the abstract:

Over the past few years, there has been a minor renaissance in the use of common law actions, especially public and private nuisance, to address environmental problems like climate change that are not being adequately addressed by public law. Several federal court decisions, including Connecticut v. American Electric Power Company and the recently vacated Comer v. Murphy, appear, at first, to provide strong incentives for an even greater focus on common law to address a broad array of environmental problems, including ?ecological nuisances.?

However, the recent cases should not be viewed as fundamentally altering the role that common law actions play in protecting the environment and public health. The recent decisions removed some jurisdictional and standing barriers to common law actions, but many impediments remain. The primary impediment, which was not significantly affected by the recent decisions, is the difficulty of proving causation in the common law actions. The recent decisions may have made it easier to bring common law actions, but not necessarily to win them.

To the extent that the recent decisions spark an increase in common law litigation to address some of the environmental problems that are not being addressed by public law, though, the litigation could spur legislative changes to the public law. Thus, the decisions could have a far greater impact on public law than on common law.

This article explores the recent flurry of common law litigation and the impacts of the decisions on efforts to protect the environment through the common law and public law.

Full post as published by Legal Theory Blog on May 17, 2010 (boomark / email).