Document Type
Working Paper
Repository Date
2008
Keywords
Global warming, climate change, nusiance, public nuisance, federalism, environmental law, greenhouse gas emissions, political question
Subject Categories
Administrative Law | Constitutional Law | Environmental Law | Law | Property Law and Real Estate
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.
Repository Citation
Dana, David A., "The Mismatch Between Public Nuisance Law and Global Warming" (2008). Faculty Working Papers. 151.
https://scholarlycommons.law.northwestern.edu/facultyworkingpapers/151
Included in
Administrative Law Commons, Constitutional Law Commons, Environmental Law Commons, Property Law and Real Estate Commons
