Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance [May 9, 2011] [open pdf - 182KB]
From the Document: "Congressional inaction on climate change has led various entities to pursue climate change measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure Congress to act, such entities have looked to international forums, treaty negotiations, Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional efforts, and-the topic here-common law suits, principally seeking to establish climate change impacts as a nuisance. Many argue that courts will (and should) be unreceptive to dealing with a global problem such as climate change through individual common law suits. [...] As well, nuisance law offers no clear standards to apply, asking courts, for example, to weigh vague policy factors. This is a recipe, it is argued, for inconsistent and confusing results from different courts. Questions of causation are also substantial: even if the court accepts that man-made greenhouse gas (GHG) emissions contribute to climate change, how can a plaintiff show that a particular adverse impact was caused by climate change, and further was caused by the GHG emissions of the defendants? And should the defendants' contribution to worldwide GHG emissions be viewed as de minimis--too small for a court to bother with? Questions of remedy are likely to be particularly intractable: what amount of emission reduction, or monetary compensation, should be required of a defendant given the likely miniscule fraction of worldwide GHG emissions contributed by that defendant? Finally, the law affords courts several easy ways of blocking nuisance-based climate change litigation, discussed in Part II, should courts decide it is inappropriate. At a minimum, no one argues that piecemeal litigation is preferable to a coherent legislative scheme."
CRS Report for Congress, R41496