David A. Dana (Northwestern University - School of Law) has posted The Mismatch between Public Nuisance Law and Global Warming on SSRN. Here is the abstract:
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.
And a bit more from the text:
A simple thought experiment may help illuminate my point about climate change as tragedy of the commons. Imagine a large fishery with hundreds and thousands of competing fishing operations spread over hundreds of miles of coastline. The fishing operations each have a port from which they launch, but they can and do fish throughout the entire area of the fishery. The main stock in the fishery – say, the cod – is being overfished and yields are dropping. Many believe that the fishery faces a tipping point where even if the overfishing does not increase further, the fish stock could fail to successfully reproduce and disappear altogether. Some fishing operations on the northern coastline sue fishing operations based one the southern coastline, alleging that the defendants’ harvesting of large numbers of fish is a public nuisance that should be abated, on the theory that the overfishing may lead to the public harm of the failure of the fishing stock to reproduce.
Almost anyone would say that this would not be a dispute that the courts acting under the common law would be well positioned to decide. For one thing, an assessment of what is a sustainable yield or fishing catch is a highly difficult question that requires continual updating, inasmuch as it implicates how a species population will fare over time, given a range of environmental factors that may fluctuate and not be well understood. It is also a philosophically difficult question, as it implicates what the goals of sustainability should be – maintaining the fish population at constant levels even at the cost of imposing hardship on many fishing operations, attempting to prevent a tipping point to depletion/extinction through fishing limits but allowing for further population reductions, or just allowing depletion to happen with the goal and understanding that other stocks or farmed fishing can take up the excess consumer demand. A difficult question embedded in these choices is whether preservation of the fishing stock is or should be an economic goal only or also an environmental/preservationist goal in itself. Even if the court could resolve these normative questions, the court would somehow have to arrive at a decision as to how to allocate rights to the yield as among current users, and to grapple with the question of what to reserve for possible new users.43 And it is unclear how the court could go about and justify this task of distribution using the common law concepts that the menu of the law of nuisance provides – that is, interference with a public right, unreasonable interference with use and enjoyment, or first-in-time/coming-to-the nuisance.
Climate change is in many ways the fisheries problem, only of a vastly larger geographic dimension. The atmosphere is a commons natural resource that appears to be vulnerable to over-exploitation in the form of greenhouse gas emissions, and many people believe there is a tipping point after which large-scale climactic changes – the equivalent of the failure of the fishing stock – are likely.44 There are deep scientific questions as to exactly how much we must reduce emissions to avoid climate change, if it avoidable at all (and some believe it is not). And there are deep ethical – for many, religious -- questions as to how much we should try to avoid climate change, and how much we should instead simply try to adapt to it.45 Implicit in these questions are other quandaries, including how much does the current generation owe future generations, how much should current consumption yield to preservation of the resource for future generations.46 And as with the fisheries, any solution requires an allocation of rights and obligations among many actors, indeed many more actors than in the fisheries example. This all would appear to be beyond what a judge could possibly justify as an application of recognized legal principles.
The assumption of this argument--which Dana briefly argues for on page 5--is that damages are unavailable and therefore, equitable relief would require an allocation of shares. But if damages were available and could be set to equal our best estimate of the social costs, this would be precisely the kind of remendy that courts are suited to provide. (The alternative would be some form of carbon tax.) Damages that internalize the social costs avoid the complex central planning decisions that Dana identifies as insurmountable for courts. Legislative and administrative bodies may have comparative advantages over courts, but decentralized decisionmaking by firms and individuals who bear the social costs might be better yet.
Of course, estimating the social costs is likely to be difficult, but these same difficulties would attend action by the political branches. Someone, somewhere has to make some estimate of the social costs of greenhouse-gas emmission per unit is policy in this arena is to be rational. (I am assuming, of course, that the precautionary principle is of no help in making the tough decisions that Dana identifies.)
Just one more small point. Dana claims that "climate change . . . in a first best world, be addressed by the federal political branches." If Dana intends to make that claim, then damages are back on the table as an alternative candidate for "first best."
