Environmental activists, supported by a cadre of impassioned academic lawyers, have been looking to the common law of nuisance as a way to appeal directly to the courts and circumvent the administrative and legislative processes of government. On June 20th, a unanimous United States Supreme Court dealt a blow to their theory. In American Electric Power v. Connecticut, the Court ruled that the Clean Air Act preempts a claim that carbon emissions from fossil fuel-fired power plants constitute a nuisance under federal common law. Although the law professors who came up with the idea that traditional nuisance law can be applied to climate change are doing their best to find silver linings in the Court’s opinion, the decision is a blow to environmentalist efforts to turn courts into environmental regulators.
In a nutshell, the plaintiffs’ theory is that carbon emissions from fossil fuel-fired power plants are analogous to the smells and sounds emanating from a pig farm in an urban area. There is little doubt that a pig farm in the city is a common law nuisance. The costs to society in the form of unpleasant sights, sounds and smells far outweigh the costs of moving the pig farm to a rural location. But in the case of fossil fuel-fired power plants, relocating does nothing to reduce a plant’s contribution to global atmospheric carbon accumulation. In other words, the only solution to the “nuisance” of carbon emissions is to curtail emissions. Of course that is the point of the climate-change-as-nuisance lawsuits. If a court is willing to conclude that carbon emissions are a nuisance, the only remedy will be for the court to order a reduction or elimination of emissions.