A hazy sky looms over palm trees and traffic along the 101 freeway near Hollywood, Calif. California is suing automakers of causing a public nuisance by contributing to climate change.
Attorneys general from California to North Carolina are dusting off an old legal strategy to fight environmental problems they think the federal government has ignored. They're falling back on common law, public-nuisance lawsuits to try to remedy environmental ills such as haze and global warming.
North Carolina is suing the Tennessee Valley Authority for creating a public nuisance with air pollution from its coal-fired power plants. California is accusing automakers of causing a public nuisance by contributing to climate change. And several states are fighting large electric utilities in court for their role in climate change.
Historically, states often relied on common law, public-nuisance lawsuits to address environmental problems. With the passage of modern environmental laws in the 1970s, these suits fell out of vogue. But now they're back.
When Clean Air Act Remedies Aren’t Enough
"What we're seeing today is some kind of revival of the common-law instruments, due to a sense that the federal instruments haven't produced the results that were hoped for," says Richard J Lazarus, professor of environmental law at Georgetown University Law School.
In the case of North Carolina's suit against the TVA, the state tried the remedy offered by the Clean Air Act. It appealed to the Environmental Protection Agency to require upwind states to slash power-plant emissions. But the EPA denied its petition.
States also appealed to the EPA to regulate carbon dioxide emissions. Scientists say that carbon dioxide emissions from burning fossil fuels, such as coal and gasoline, are a major contributor to climate change. But the EPA has refused to regulate them.
"The perception is, in the absence of aggressive federal regulation, some of the states are becoming more active," says Noga Morag-Levine, a law professor at the University of Michigan, said she had noticed the same trend. "Whether or not those lawsuits will succeed is a whole other thing."
Prodding Congress Into Action
The states' global warming suit against the electric utilities already suffered a defeat. U.S. District Judge Loretta Preska dismissed the case a year ago, ruling that the political questions the case raised "are not the proper domain of judges." The case now is on appeal.
"They're difficult lawsuits to win. Not impossible, but difficult," Lazarus says.
The plaintiffs have the burden of proving that the polluters caused unreasonable harm to life, health or property of the public.
Lazarus says these lawsuits could end up spurring congressional action. And, in the end, effective legislation is a much better way to deal with pollution problems, he adds.
"What you're seeing people doing is trying to jumpstart the process," Lazarus says.
That's what happened in the late 1970s, when there were a number of successful common-law cases dealing with hazardous wastes, Lazarus recalls. In the 1980s, Congress stepped in and passed the Superfund law, which gives the federal government authority to step in and force polluters to pay to clean up hazardous substances that could endanger the people or the environment.
Lazarus predicts that the same reaction would come if one of the current nuisance suits is successful.
"Bingo, you're going to see Congress step in quickly," he says.