Placing Climate Tort Litigation in Context

Environmental law did not begin with enactment of the National Environmental Policy Act (NEPA) in 1969. Nor did it begin when Massachusetts adopted the first state wetland protection statute in 1963 or California adopted the first controls on air pollution from automobiles. It did not begin when the federal government established Yellowstone National Park in 1872 either.

Environmental law may have begun in 1610, when a landowner brought legal action against a neighboring pig sty, objecting to the fumes and odors it produced. The sty owner objected that the landowner’s sensitivities should not take precedence over his productive activity, but the court was not convinced, recognizing that each landowner only has the right to make use of their property in such a way as not to infringe upon the right of others to do the same, and that this meant nuisance claims against polluting activity could proceed. This decision was not the first articulation of this principle, but it appears to have been the first reported case in which it was enforced.

What we think of environmental law today–sprawling statutes authorizing expansive regulation of economic activity–is a relatively new phenomenon. The first environmental statutes were efforts to reinforce and supplement nuisance law, as well as to provide greater clarity and predictability as to what sorts of activities would be allowed where (e.g. whether coal-burning could occur in densely populated areas). It was not until much later that policymakers concluded environmental protection required the erection of an administrative state and prescriptive regulations supplanted tort law as the front line of environmental defense.

I recount this history in my latest Civitas Outlook column as a way of putting contemporary climate litigation in context. Some such litigation, such as suits against administrative agencies for regulating too much or too little, are products of modern administrative law. Others, including the wave of suits filed by state and local governments over climate change, are efforts to rely upon the longer history of tort law as a protection against environmental harm. This does not mean that such cases can or should succeed, but it does highlight ways in which these cases are meaningfully different from much contemporary environmental litigation, including the outlandish constitutional claims made in the various kids climate suits.

Tort law claims remain a viable path for environmental regulation save where such claims have been preempted by state or federal law. But such preemption requires legislative action, which is a problem for those who oppose climate tort suits because Congress has not done much of anything to occupy the field of climate policy, let alone to preempt such claims. I address this point in my Civitas column, as I have in prior blog posts and my scholarship (and will be discussing this question later today on a panel at the Federalist Society’s National Lawyers’ Convention).

The bottom-line point is relatively simple:

As a policy matter, it may make little sense to address climate change through myriad tort suits across varied jurisdictions. However, such policy arguments cannot compensate for the lack of legislation. Congress has never passed a statute that preempts state-law climate litigation or policy-making. State environmental regulation of some products (such as automobiles) is preempted. There may be constitutional constraints on the extent to which state courts can offer redress for harms caused by out-of-state actions. Still, there is no constitutional basis to claim, as fossil fuel companies, the Trump Administration, and some state attorneys general have alleged, that these suits cannot even be filed. This does not mean that state law tort claims should succeed; it only means that federal law has relatively little to say about it.

[Note: I’ll update this post with a link to the FedSoc panel when video is available.]