I generally support the use of common law nuisance actions to address environmental problems. Where a given property owner is infringing upon the ability of another property owner to enjoy his or her property, I much prefer reliance upon the common law -- or at least common law principles -- than reliance upon regulatory mandates. But the common law, as we know it, is not applicable to every environmental situation. One area where it is certainly not applicable is climate change -- at least as advanced by several state attorneys general last week. As I explain in this TCS column, the state AGs' case is based upon dubious legal analysis and would not abate the "public nuisance" it purports to address. I believe the suit is more about political posturing and trying to force a negotiated settlement with utilities than it is about climate change.

Even if I thought public nuisance principles were applicable to climate change, I don't believe state AGs should be able to use nuisance law to impose burdens on other states that they are not willing to impose within their own state. (Think of this as an equitable "clean hands" principle, or as Thomas Merrill put it in a seminal law review article a "golden rule" for transboundary pollution.) Basically, if state A wants to use nuisance law to impose emission cuts on utilities in state B, state A should be willing to impose the same reductions on itself. This is easy to do where state B is upwind and is primarily responsible for polluton in downwind state B. But in the case of climate change, there is no "upwind and "downwind." Emissions in Wisconsin are as relevant as those in New York as those in Ohio, and so on, and there is no a priori reason to assume that the burden of emission reductions should fall upon one state's industry rather than another.

Of course, if the state AGs were serious about climate change as a policy matter, they would not be posturing and litigating over ecologically insignificant emission reducitons in other states. Instead they would be seeking policies that encourage technological devleopment, improved societal resilience, and the like. Several years ago, when I was still at CEI, I was lead author on this study that outlines some of the steps of this sort that could be taken. It's a sign of the state AGs sincerity (or lack thereof), that they are more interested in the political theater of these nuisance suits than in considering serious policy proposals.