In our upcoming October gathering, we will preview a critical environmental and federalism case, CSX Suncor Energy (U.S.A.) Inc. v. Commissioners of Boulder County, which addresses whether state-law climate change damage suits belong in state or federal court. To prepare for this debate, it is useful to examine the history of public nuisance litigation and the boundaries between local courts and national regulations.
The concept of a public nuisance has its roots in medieval English common law. Originally, it was a criminal charge brought by the crown against individuals who obstructed public highways, fouled communal water, or operated noisy, offensive trades. In the nineteenth century, as the Industrial Revolution filled English cities with smoke and soot, public nuisance evolved into a civil remedy. In the landmark case Walter v. Selfe (1851), the court had to decide whether the smoke from a brick kiln constituted a nuisance. The court ruled that a neighbor has a right to the "pure, untainted, and unpolluted air," and that local judges could enjoin industrial operations that interfered with the comfort of human existence. Nuisance was defined locally: the judge looked at the specific neighborhood, the specific chimney, and the specific damage.
However, when local governments attempt to use this same state-law nuisance doctrine to address global climate change, they encounter the barrier of federal preemption. In a global economy, emissions from a refinery in one state mix with emissions from around the globe, affecting climates thousands of miles away. If a local judge in Colorado can award billions of dollars in damages against oil companies for global emissions, they are effectively setting national and international energy policy. The Supreme Court has previously ruled that federal common law claims are preempted by the Clean Air Act, which delegates regulation to the EPA. The new battleground is whether local state-law tort claims are similarly preempted, or if the ancient right to protect local property remains intact.
This October, we will discuss how this boundary dispute will shape the future of climate litigation. We will explore whether state courts will become a backdoor regulatory system for global emissions, or if the Supreme Court will draw a firm line, keeping climate policy strictly in the hands of federal regulators and national legislation.