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Common Law Judges Must Act On Global Warming

Contributed by:
Joseph H. Guth, Ph.D., J.D.
Science & Environmental Health Network

We all know that we have to take action on global warming now. As private individuals, we are beginning to do things like installing photovoltaic panels at our homes and businesses, switching to Priuses and bicycles, and buying local. Our governments are edging forward with steps including a revised Kyoto Protocol, California’s Global Warming Solutions Act of 2006 and the America’s Climate Security Act just introduced into the U.S. Senate by Senators Lieberman and Warner.

But, one might ask, what has become of that other great engine of American social transformation, the common law? Unfortunately, as the recent case of California v. General Motors et al. proves yet again, when it comes to the environment, our common law judges are missing in action and can best be seen running for the hills. The disengagement by these judges not only forsakes their historical role in American system of law but, when combined with the Supreme Court’s takings jurisprudence, is leading American environmental law into a profound and corrosive gridlock.

In California v. General Motors et al., California’s Attorney General sued six automakers for money damages, alleging that the carbon emissions from their cars, which constitute 20% of U.S. greenhouse gas emissions and 30% of California emissions, have created a common law nuisance. The case was brought in federal court because it implicates pollution emanating from other states, and therefore raises an issue of federal rather than state common law. It squarely charges automakers with substantial liability for the impacts of global warming on California; there could hardly be a more important social issue today.

On September 17, 2007, District Judge Martin Jenkins took his first major step in handling this important common law matter: he dismissed it. He accepted the automakers’ unlikely argument that the court should not get involved in global warming because it raises “political questions” that the Constitution assigns exclusively to the political branches of government. He wrote that adjudication of California’s claim would require him to balance environmental destruction with the interest in advancing industrial development, and that such balancing of competing interests is the job of the political branches of government, not courts. This decision duplicated the 2005 dismissal by the Southern District of New York of another global warming case, Connecticut v. American Electric Power Co., a federal common law nuisance action in which six states sued electric utilities seeking a phased abatement of their ongoing carbon emissions. These cases, both now on appeal, hearken back to the famous 1970 decision Boomer v. Atlantic Cement Co., in which the high court of the State of New York asserted that controlling air pollution is the responsibility of legislatures and not courts at common law.

There was a time when the common law judiciary embraced the ongoing duty to resolve conflicts between environment and economy. Throughout most of our history the common law has been the nation’s major source of laws affecting property, steadily evolving through resolution of private disputes. Legal historians have shown that property rights have never been fixed. Instead, they have been continuously modified through the centuries as our circumstances and social objectives have changed.

Our current structure of property rights arose during the nineteenth century when judges invented it to enable the industrialization of the United States. The judges explicitly concluded that the public welfare was no longer best served by the ancient rule that landowners must “use their own so as not to harm another.” They came to view the net public benefit as best served by economic growth even if it caused some collateral damage. Thus, they sought to encourage economic growth by shielding industry from the liability imposed by the old rules, and began instead to impose liability only where defendants were somehow “at fault.” As they overthrew the old law and invented the modern fault-based liability doctrines of negligence and nuisance, the most important step they took was to switch the burden of proof onto plaintiffs, who now must demonstrate that defendants’ acts are “unreasonable” to make them liable for the damage they cause. This modern test requires plaintiffs to prove that defendants’ could have taken steps to prevent the damage that were “cost-effective” (meaning steps whose benefits outweigh their costs), otherwise the damage is deemed “not unreasonable” and is allowed to lie where it falls, an acceptable by-product of the social benefits of economic activity.

This profound redefinition of property rights, rooted in social policy, effectively unleashed the Industrial Revolution as the judges intended. It also permitted the ecological destruction we now face. The common law forces courts to evaluate the fault-based “unreasonableness” of each increment of damage on a case-by-case basis, determining whether each increment taken alone is cost-benefit justified. It implicitly assumes not only that the economy can grow forever but also that the total scale of the accompanying cost-benefit-justified damage to the Earth can grow forever as well. The modern common law, focusing on the fault of individual actions, contains no means of constraining the total scale of the ecological damage we do. It was invented when the world was viewed as an “empty world” with boundless pollution sinks and resources, when the atmosphere seemed infinite and there always was another forest, another river, another fishery to exploit.

But twenty-first century realities have outrun this nineteenth century view of the world. In California v. General Motors et al., Judge Jenkins recognized that the allegations before him highlighted the limitations in the common law. He wrote that he had no guidance as to how to determine what was an unreasonable contribution to global warming or how to apportion costs among multiple sources of damage. But the answer is that the current rules of the common law are not inevitable or required by logic or somehow fixed for all time. It is the job of judges to adapt the law to current circumstances seeking always to promote the public welfare. We need them to invent new rules that respond to the central fact of humanity’s modern circumstances: the Earth has a finite and limited capacity to sustain ecological damage, and to exceed this ecologically sustainable limit is to diminish the public welfare. It seems plain that the law should adopt a new presumption: that we now must avoid environmental damage, including carbon emissions, whenever and wherever possible.

The federal government has stepped in with modern environmental statutes. Unfortunately, since these statutes were patterned after the common law, they harbor, for the most part, the common law’s core structure. They implicitly adopt the presumption that favors economic activity and then, especially as administered under President Clinton’s Executive Order No. 12866, require government to develop regulations that it can prove are “reasonable” (i.e., provide benefits that outweigh costs). Like the common law, these statutes force environmental problems to be addressed medium-by-medium and case-by-case and do not attempt to constrain cumulative ecological damage. We all know that the federal statutes are not going to preserve the Earth, and these are the fundamental reasons why.

To be sure, some federal laws adopt environmental or health objectives, including the wetland protection and water quality goals of the Clean Water Act, the health-based standards of the Clean Air Act and provisions of the Food Quality Protection Act and the Endangered Species Act. Some states and local communities are going further as well, attempting to ban development in ecologically sensitive areas and adopting new approaches such as the precautionary principle. These laws are important steps forward, and the bitter criticism that industry reserves for them reflects their divergence from the balance of interests struck long ago by the common law.

The divergence between the common law and more progressive steps by government is, however, corrosive for our system of government through the rule of law. It encourages property owners to view environmental laws as invasions of their common law rights, as efforts by government to take their property and give it to the public. It allows property rights conflicts to be cast as a struggle of private individuals for freedom from a repressive and authoritarian government rather than what they are — a continuing democratic realignment of property rights to promote the public welfare. It fuels reactions like Oregon’s Measure 37 and calls by property owners for legislatures everywhere to adhere to the rights embodied in the common law or else provide compensation.

The Supreme Court stoked these fires with the landmark 1992 takings case of Lucas v. South Carolina Coastal Council. In that case, a landowner claimed that South Carolina worked a taking and owed him compensation when its law to preserve fragile beachfront barred him from building houses on his land. Justice Scalia’s opinion for the 6-3 Court agreed, holding that when legislation denies an owner of “all economically beneficial or productive use of land,” the Fifth Amendment requires compensation if the legislation creates more restrictions than “background principles of the State’s law of property and nuisance already place upon land ownership.”

So it came to be that the current version of the common law, developed to promote the Industrial Revolution, is enshrined as the source of legitimate “background principles” of property rights, the touchstone against which progressive environmental legislation must be measured (at least where it eliminates economic value). One might find dubious, as did the Lucas minority, this disfavoring of legislative expressions of the democratic will. After all, the Constitution nowhere defines what is and is not property, and the ultimate source of power to define property rights, including the power to overrule the common law, resides in the people, the democratic polity. But Lucas is the law of the land, and those of us who urge legislatures to adopt more progressive, ecologically-based laws know just how deeply they fear working a takings that, like South Carolina, they cannot afford.

The Supreme Court’s jurisprudence is impeding legislatures from creating a structure of property rights that diverges substantially from the common law. This makes it more important, not less, for our judges to confront ecological crises in the disputes that come before them at common law. The federal common law cases now on appeal in the Ninth Circuit and the Second Circuit represent profound efforts to prompt common law judges to step up and grapple with global warming both on its own merits and also as a paradigm for grappling with the problem of cumulative ecological impacts writ large. We all, including future generations, should salute the plaintiff States and environmental groups for their efforts and wish them well. For we need the common law to join with individuals and the other branches of government, and take action now.

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5 Comments

  1. patrick parenteau
    Posted October 30, 2007 at 9:26 pm | Permalink

    Based on the “best available science,” the U.S. and other nations must reduce carbon emissions, which comprise 83% of GHG, by 80% by 2050, if we are to avoid the most severe consequences of climate change. As daunting as that task is, even that may not be enough given the mounting evidence that climate change is happening faster, and the consequences are already more serious, than the models have projected.

    Given this reality, common law nuisance claims are obviously not the answer to climate change, even if the courts welcomed them with open arms, which is not likely anytime soon. Much more comprehensive solutions are needed including an aggressive cap and trade program(with auction), a “Manhattan Project” level R&D program to end the fossil fuel era (without launching a nuclear proliferation and waste era), a “Beyond Kyoto” international treaty that fairly allocates reductions among developed and developing nations, acceleration of “green development mechanisms” in China, India and other rapidly industrializing countries, preservation of tropical forests prime agricultural soils and other “carbon sinks” (with debt for nature swaps and other sustainable investment programs underwritten by the World Bank and other financial institutions), and so on. Even if, by some miracle, all this were to happen on schedule, the existing atmospheric concentrations of CO2 have already committed the planet to severe impacts from climate change, impacts we have just begun to comprehend. Yet, to date there has been precious little attention paid to the human calamity that is already unfolding in the Arctic, in the island nations, in Africa, and right here in the good ol’ USA, where conditions of “extreme drought” and “extreme fire danger” and “extreme flood hazards”–all of which are the terms used by the responsible government agencies as well as by private insurers–are in the headlines across the country. These conditions are likely to get much worse before they get better, if they ever do. While we dither over how much it will “cost” to take decisive action now, and ignore the far greater cost of delay, the fate of millions of people and thousands of communities is being determined, and we are not even thinking about to deal with this human catastrophe in the making.

    Despite these inescapable and depressing facts, we cannot simply give up. There is still time to act to forestall the worst disasters, and to come to the aid of those at risk; and we have moral obligation to do all we can, and use every tool at out disposal to confront the gathering menace of runaway climate change. Litigation does have a role to play in this epic battle to save the planet, literally. Litigation is needed to force changes in government policies, like the Massachusetts v EPA case, which has opened the door to meaningful improvements in fuel efficiency standards for automobiles, and to regulation of CO2 from power plants and other sources. Litigation is needed to stop the proposed construction of 150 or so “conventional” (i.e. dirty) coal plants, as just happened in Kansas and Florida. Litigation is needed to force corporations to disclose the risks of climate change in their state and federal securities filings. Litigation is needed to hold corporate managers accountable for failures to factor carbon constraints into their business models. Litigation is needed to vindicate the rights of climate change victims before national and international tribunals. Litigation is needed to require federal agencies to not only “consider and disclose” in environmental impact statements the climate effects of their actions and programs, but to adopt alternatives that, at a minimum, do not make matters worse, and at the optimum actually reform the way they do business.

    In this vein, common law claims do have a part to play. They draw attention to the crisis we face and what needs to be done about it. They help educate and hopefully galvanize stronger public support for legislative action at state and national levels. They increase political pressure on elected officials to “lead, follow or get out of the way” when it comes to taking meaningful action. And at some point, as the jurisdictional barriers are overcome–for example, if the Second Circuit rules that the political question doctrine does not bar nuisance actions grounded on federal or state common law–liability judgments will become a more defined and quantifiable risk that even “Wall Street” cannot ignore. To the extent that nuisance claims and lawsuits like California vs. the auto companies and Connecticut vs. the electric utilities can motivate these industries to start building better cars and power plants, or at least scare investors away from investments in the outmoded and dangerous ways of “BAU” that would be a welcome innovation in the evolution of the common law.

    Thanks for writing the essay, and keep them coming.

  2. Posted November 1, 2007 at 5:40 pm | Permalink

    I enter this discussion not as a lawyer but as a mere economist interested in the legal foundations of the economy.

    Having said that, I question the value of situating the conversation about climate change in the realm of “property rights.” There are two reasons why I find this unpromising. First, property law and takings law is now largely incoherent—still struggling to escape the trap set by Frank Michelman back in 1967, and the prospects for clarity with a confused Supreme Court on our hands seem remote. Second, climate change has little at all to do with property law as we ordinarily think of that subject. Of course if the atmosphere is seen as an open access resource (res nullius) then we cannot be surprised at the level of emissions that contribute to the production of greenhouse gasses. But greenhouse gasses (water vapor, carbon dioxide, methane, nitrous oxide, and ozone) emanate from many sources (many of them mobile and not normally connected with “property rights” as ordinarily construed).

    My reading of legal and economic history suggests that Anglo-American jurisprudence is driven by a commitment to pragmatism—-a position endorsed by the mature (but not the early) Posner. The courts and the legislature will change their mind on climate change when enough good reasons are marshaled to persuade them that it is now “reasonable” to address the problem and to create the necessary legal instruments for doing so. That is what the common law does. With the dramatic climate events now making daily news, we can expect a more rapid reassessment by lawmakers and judges (also, “lawmakers,” by the way) than has been evident over the past decade.

    Of course the machinery moves far too slowly on those issues that we favor (fixing climate change), and much too fast on those issues we abhor (authorizing and upholding an unnecessary and counterproductive war….). But then, what else is new?

  3. Posted November 9, 2007 at 1:04 am | Permalink

    This is a brief response to the comments of Professors Bromley (Nov. 1) and Parenteau (Oct. 30).

    Professor Bromley

    Professor Bromley questions whether climate change is properly situated as an issue of property rights. This may be just a semantic or definitional question. “Property laws” are commonly considered by lawyers to include all laws that govern how people use their property. Within these laws reside society’s accommodation and balancing of private interests with the obligations of property owners to the community. Defined this way, “property laws” include all environmental statues and all common law doctrines such as nuisance and negligence (to the extent they involve property). Indeed, “property rights activists” and “free-market environmentalists” are acutely concerned with takings and environmental law.

    Laws governing carbon emissions will force private owners to curb emissions emanating from factories they built on their land, impose financial liability or tax burdens on unreasonable carbon emissions, etc. Such new laws would clearly constitute a rebalancing of the private freedom to use property to emit carbon with the obligations of property owners to the community. Looked at this way, calling laws that affect climate change “property laws” is a definitional choice, but one that has solid grounding among property lawyers and in the law itself. The fact that we have treated the atmosphere as an open access carbon sink does not mean that when we adopt laws governing access to that sink, those laws are not property laws. But the real issue is not so much the semantic one of what name we give to these laws. Rather it is their structure, the balance they strike between society’s interests in economic growth and the environment, and the role they play in guiding our economic activity.

    Professor Bromley is correct that property and takings law are confused, but that does not make them unimportant or unworthy of intensive attention. Indeed, at most times in our history people are likely to have been somewhat confused about property laws because those laws are almost always in transition. It is only hindsight that makes the past look clear. Today, we are, I believe, in the midst of a monumental transition in the law governing how we live on the Earth, and this is naturally confusing and disruptive of vested interests and established ways of doing things.

    Finally, Professor Bromley argues that the law changes pragmatically when the need for it to do so becomes apparent. This seems to me a very removed point of view, and one that might be possible if one looks at history from a distance. But history only looks preordained in hindsight; in reality we have no real idea what the future holds. We don’t know whether we will be able to learn to live on the earth or whether, like so many species released from predators, we will outgrow and destroy our only home. Lawyers who spend their lives trying to achieve legal change experience their work as a titanic struggle to get judges and legislatures to alter vested rights in the public interest. While laws are always based on some particular vision of how to balance various interests, there is never only one “pragmatic” way to do this (except perhaps in hindsight) because there is no absolute right way for us to live — in a democratic nation governed by the rule of law, each generation is on its own to figure out and implement a balance of values and interests that it can live with.

    As Professor Parenteau points out, there is no guarantee whatsoever that we will save the Earth from climate change. It is up to us to make it happen, if we can. But it won’t be easy. What we are trying to do in this forum is define what the new (property) laws should look like and how to make stick the “good reasons” that Professor Bromley is confident exist.

    Professor Parenteau

    Professor Parenteau is surely right when he outlines the massive global and national legislative effort that we need to address climate change. He argues that the common law may have a limited, if somewhat useful, role to play, but that the common law is not the answer to climate change.

    It is true that the common law, by itself, would have difficulty accomplishing on its own the social transformation we need. Nevertheless, I believe that transformation of the common law is much more important than many lawyers recognize. The reason is that we need transformation of the entire legal system of the United States, and this simply cannot occur without a restructuring of the common law. The United States does not have a civil law legal system in which all law derives from a central government with unlimited power to control every aspect of how our society operates, as do the civil law nations of Europe with their elaborate (and repressive?) codes. Leaving aside issues raised by the limited Constitutional powers of the U.S. federal government and by the Constitutional division of power as between federal and state governments, our legal system comprises two principal legitimate sources of evolving law: common law created by judges as they resolve private disputes, and legislative law created by the political branches.

    The common law has historically been the source of most of our property law and remains significant even today, after the advent of the federal environmental statutes. Thus, in the United States, we have two different sources of law that govern the balance between private property rights and the obligations of property owners to the community. These two bodies of law exist side by side, each with its own role in the governance of the nation, each implementing a vision of the proper balance of interests in our society.

    The central point I am making, which is not a novel one, is that it is very corrosive — indeed, ultimately incapacitating — for the judiciary and the political branches to implement substantially different conceptions of the proper balance of social interests. To the extent a divide persists between the common law and legislative law, legislation is subject to takings claims by infuriated property owners who prefer the conception of property rights implemented by the common law. Because of (a) our tradition of common law, (b) the size and diversity of the nation, (c) the fact that the federal government is one of limited, specified powers, and (d) the takings clauses of both state and federal constitutions, it is going to be very difficult for legislation, especially federal, to fully implement a structure of property rights that diverges substantially from that of the common law. The current existence of such a divide is at the root of the efforts in many states and at the federal level to require government to compensate property owners whenever legislation diminishes the value of their property under existing common law property rights or imposes costs not required by that law. To avoid inflaming this divide as more progressive legislation arises, we need the common law to be updated to reflect the new balance of property rights that we need to protect the environment. If it did so, property rights activists and free-market environmentalists would really have nowhere to turn.

    Moreover, while common law judges for the last decades have failed to adapt the law to our changing environmental circumstances, I believe that Professor Parenteau underestimates the power that inheres in the common law under our legal system. It was, after all, common law judges who led the complete transformation in the nineteenth century of our legal system to one favoring economic growth. By now moving to implement a new balance of interests, the common law could force a general internalization of environmental costs, adapt to local ecological circumstances and respond to myriad private concerns that neighbors are having impacts on the community that are no longer reasonable in our current circumstances. And judges have the power to do this quickly, on an emergency basis if they can be convinced it is necessary. (Think of how far reaching and immediate the impact would be of a determination that automakers and power companies are liable for damages for their carbon emissions! Who else would face immediate liability, or rather, who wouldn’t?) The common law enables private parties (and thereby society) to resolve disputes by courts that can experiment with new legal principles. It is a flexible and powerful element of the American legal system, which provides the nation with an effective alternative to a distant government that issues detailed codes governing every aspect of the national life.

    The common law is an integral and important part of the American system of government and law. It needs to be updated, and quickly, to support, further and make complete the kind of social transformation Professor Parenteau advocates so forcefully. Judge Jenkins’ avoidance of this responsibility in California v. General Motors et al. should outrage us all.

  4. Posted November 13, 2007 at 3:43 am | Permalink

    Joe opens by wondering if our discussion about the correct legal context (“doctrinal window”) for climate change policy is “just a semantic or definitional question.” That is, is climate policy best understood (and litigated) as a part of property law or as part of some other legal doctrine? The answer cannot be one of semantics or definition. The reason it cannot be “just” semantics or definitional is that different branches of the law (different doctrines) have their own special conceptual and empirical trump cards that do valuable work. As he notes, the “property rights activists” and the “free-market environmentalists” are “acutely concerned with takings and environmental law.”

    Why, we might enquire, do the property rights crowd and the free-market environmentalists like to situate their struggles in the confused doctrines of “property law”? And why, exactly, do they like to file cases dressed up in the garb of “regulatory takings”? They do this precisely because they hope to defeat governmental regulations, and what better way to beat back the government than to appeal to some imagined “rights” of property that are alleged to be timeless and immutable? Those who hate government (and regulations emanating from government) are not inspired in their litigation strategy by high principles of what the law is and how it ought to be used to engage a fair fight. They figure that “property rights” is the legal window to which they must go if they are to have any chance of winning. And, given the incoherence of takings law, this is indeed their best strategy. But it is not a reliable winning strategy as many landowners (those who claim to have immutable rights) have discovered to their dismay (and expense). But the free-market environmentalists play that card because that is the only card they can play. It is the only legal doctrine that seems to hold promise. I suspect plaintiff attorneys lie awake at night trying to package various disputes as a “takings case.”

    Joe’s major point is good—and remains pertinent. That is, how can we bring the public and the legislature around to understand the perils of climate change? After all, if my understanding of the law is at all close to reality, the legislature must speak with some cogency on this matter before the common law can kick in. After all, judges have to embed their decisions in some collectively understood context. Recall the Bush administration does not want CO2 to be declared a “pollutant” that can be regulated under the Clean Air Act. It seems as if we need a new piece of legislation that speaks not to clean air but to an atmosphere that is not assaulted by certain gasses in excess of their “natural” (background) level. Perhaps a “Pre-Industrial Atmosphere Act” would do the trick?

    It is not my position that the “law changes pragmatically when the need for it to do so becomes apparent.” I go back to the original post from Joe—“Common Law Judges MUST….” I am as much in favor of eliminating greenhouse gasses as the next person, and certainly as committed to this as Joe is. But what I want, or what Joe wants, will not be enough to get it done. Indeed, one of the serious flaws in a democracy is that the majority of people need to be brought around to a position for it to have any chance of success in the policy arena. Dictatorships have no such impediments.

    Pragmatism is not a philosophical position that says laws change when it is apparent that they should. That logic is circular. Pragmatism is concerned with a careful assessment of the reasons why individuals hold the beliefs they hold. A pragmatist would say to George Bush, “Please tell me again why you do not believe that we are undergoing climate change?” Another question from a pragmatist might be: “Can you please tell me who has persuaded you that the costs of complying with the Kyoto Protocol would be seriously harmful to the American economy?” Or perhaps this question might be tried: “Can you please tell us why all of your advisors on energy policy happen to be from the energy industry?” These (and many more related) questions are what pragmatism teaches us to ask.

    My view is that we will not bring American voters around to our side until they have had a chance to judge political leaders on a set of questions like the sample above. Democracy demands coherent discourse about pressing issues. Will the coming presidential campaign yield up such discourse? I am not optimistic.

  5. Posted December 15, 2007 at 4:29 am | Permalink

    Great discussion thusfar! I especially appreciate Dr. Guth’s basic argument: that the common law, if allowed to persist in its 19th century prejudices, will serve to undermine whatever progress is made on other legal fronts. Too much has been said by Dr. Guth and prior respondents for me to respond to every point of interest, so I’m limiting myself to two specific subjects:

    1) The need for “temporal torts.”
    Dr. Guth’s list of unsuccessful clean air public nuisance actions could have been much longer than he made it. Other cases that qualify for the list include Diamond v. General Motors (Cal. App. 1971) and Washington, et al v. General Motors (U.S. 1972) (in which our sometime hero Justice Douglas wrote the majority opinion rejecting the public nuisance claim). In all of the cases, there seem to be two major justifications made for the refusal of the courts to expand the common law to cover large scale air quality issues: a) the nature of the judicial function: judges have no significant investigative resources and make their determinations on a case by case basis, and are therefore less well equipped than the legislative branch to resolve issues with broad policy ramifications; and b) the countermajoritarian problem: as the product of an unelected branch (at least on the federal level), any such policy adopted by a court will have less legitimacy than a policy adopted by elected representatives.

    I’ll only address the second of those concerns here. Put briefly, countermajoritarian concerns should play no role in the courts’ resolution of global warming litigation. The most distinctive aspect of this litigation is that it concerns impacts that will be felt disproportionately by later generations. Because they are yet to be born, those generations cannot vote and are not represented in the “representative” branches. They are the quintessential unrepresented minority, and, as such, they are entitled to the protection of the court. The courts should therefore allow themselves to hear claims brought to vindicate the interests of the future public. For the same reasons, courts dealing with such posterity claims should be more willing to exercise the power of judicial review — over any legislation that unreasonably favors present factions, or even the present public as a whole, to the detriment of posterity.

    Other “temporal torts” can be articulated, and some might prove to be as useful as – or more useful than — than public nuisance. For instance, “temporal trespass,” borrowing from the elements of traditional trespass, might more readily incorporate an element of presumed damage. The tort of trespass has already evolved to include harms to air quality; successful trespass actions have been brought against such practices as field burning. Because the air at issue in a temporal trespass action would belong to posterity collectively, rather than to specific, presently identifiable individuals, the action would have characteristics of an anti-pollution action brought by one country against another, and international law principles might need to be incorporated by analogy. As Jefferson once famously noted, “by the law of nature, one generation is to another as one independent nation to another.”

    Just as regular nuisance and trespass proscribe harms which spill over onto neighbors adjacent in space, temporal nuisance and trespass would proscribe those harms that spill over onto neighbors adjacent in time. Another promising cause of action would be public waste, which would have the advantage of being based on a tort that evolved in equity for the specific purpose of protecting future interests.

    2) Incorporation of the Precautionary Principle into public nuisance analysis.
    Dr. Guth suggests that “[nuisance] law should adopt a new presumption: that we now must avoid environmental damage, including carbon emissions, whenever and wherever possible.” I would suggest framing this presumption in the “strict scrutiny” language of constitutional jurisprudence. If we accept that the public and posterity have a fundamental interest in an undamaged atmosphere and climate, then it follows that policies and practices which pose a serious threat to that interest should be prohibited unless they are a necessary (or are the least harmful means) to achieve another compelling public interest. This doctrine could be articulated as part of a larger constitutional doctrine (which I will outline in more detail on a later post on this board), or independently, as part of the natural evolution of the common law.


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