Abstract
Part I begins with a brief sketch of the common law environmental protection that preceded and matured alongside the development of environmental regulation, including the rise of federal common law actions for interstate pollution. With an eye toward preemption, and its role within our federalist system, Part II sketches the system of state and local environmental regulation that served as the background for the adoption of federal environmental law. While federal environmental laws are quite comprehensive and far-reaching, they operate alongside state and local efforts, often in collaborative fashion, and rarely preempt state regulation or litigation. [...]
Parts III and IV discuss displacement and preemption respectively, in the context of environmental law. [...] As discussed in Part IV, preemption is quite different from displacement. [...]
In the absence of preemptive federal legislation, state-law based climate nuisance claims should not be preempted, even if federal common law actions should be displaced. This would seem to be evident from the doctrine, but not every federal court has recognized it. As discussed in Part VI, the U.S. Court of Appeals for the Second Circuit misapplied current doctrine in holding that New York's nuisance claims were first, preempted by federal common law, and then displaced by the Clean Air Act. Other circuits to have faced related questions (albeit in the context of removal) have not made the same mistake. As discussed in Part VI, the Second Circuit's opinion misapplied existing law, relying on mistaken assumptions about the nature of our federal system. Other legal arguments for preemption of state-law- based nuisance claims for climate-related damages are equally unavailing. While there may be grounds to dismiss state-law-based nuisance claims filed by local governments against fossil fuel producers, displacement and preemption are not among them.
To close, the paper offers some concluding thoughts and poses questions for further consideration as to the proper relationship between federal environmental law and litigation over interstate air pollution generally, and climate change in particular.
This abstract has been taken from the author's introduction.
Document Type
Article
Publication Date
2022
Publication Information
17 Journal of Law, Economics & Policy 217-262 (2022)
Repository Citation
Adler, Jonathan H., "Displacement and Preemption of Climate Nuisance Claims" (2022). Faculty Publications. 2275.
https://scholarship.law.wm.edu/facpubs/2275