Air Pollution as Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement with Nineteenth-Century Smoke Abatement

Abstract

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the use of nuisance actions in the successful abatement of “the smoke evil” in the nineteenth and early twentieth centuries to illustrate how nuisance law develops over time, interacts with other forms of environmental regulation, and encourages the development of new technology. This Comment concludes that plaintiffs can in fact succeed on the merits, and, regardless of their success, climate nuisance suits can promote stricter federal regulation, serve an expressive function, and incentivize the development of air pollution abatement technology.