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Copyright (c) 2012 Board of Trustees of the Leland Stanford Junior University
Stanford Environmental Law Journal

ARTICLE: A New Front Blowing in: State Law and the Future of Climate Change Public Nuisance Litigation

March, 2012

Stanford Environmental Law Journal

31 Stan. Envtl. L.J. 49


Tracy D. Hester*


I. Introduction
Climate change litigation, so far, has been an overwhelmingly federal affair. Federal climate change litigation has grown into an active field of law, 1 and one federal tort in particular - common law public nuisance - has emerged as a central tool for parties seeking limits on greenhouse gas emissions and damages for harms caused by past and current emissions. 2 Climate change claims under state tort law brought in state courts, by contrast, have remained comparatively rare. 3

In each of these federal court battles, the parties have heatedly contested the appropriate role of the federal courts. Because of the federal courts' inherently limited jurisdiction under Article III of the U.S. Constitution, several high-profile decisions have wrestled over the institutional competence of federal courts to hear sprawling climate change disputes over activities that literally span the globe. 4 In particular, three federal appellate courts reached different conclusions on whether federal courts can (or should) hear climate change public nuisance lawsuits under federal common law. 5

The federal controversy recently culminated in the U.S. Supreme Court's ruling in American Electric Power Co. v. Connecticut (AEP v. Connecticut). 6 Eight attorneys general, three non-profit land trusts, and the City of New York sought to have the current levels of greenhouse gas emissions from coal-fired power plants owned by four privately owned utilities and the TVA declared a public nuisance under federal common law. After the Second Circuit allowed the lawsuits to proceed, the Supreme Court reversed ...
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