Uncommon Law: Ruminations on Public Nuisance

Preface

The ancient common tort of public nuisance is all the rage these days. Its resurgence is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. ²See generally, Richard O. Faulk and John S. Gray, Premature Burial? The Resuscitation of Public Nuisance Litigation, 24 Toxics L. Rept. 1231 (October 22, 2009) (analyzing recent public nuisance decisions regarding climate change); see also Richard O. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941 (2008) (providing historical perspectives regarding public nuisance); Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. CIN. L. REV. 741 (2003) (same). Traditionally limited to local concerns, the tort now aspires to planetary dimensions, and its expanding scope seems increasingly likely to attract review by the United States Supreme Court. ³The Fifth Circuit recently granted en banc rehearing to review a panel decision allowing public nuisance claims based upon defendants’ greenhouse gas contributions to global warming under Mississippi law to proceed. See Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), rehearing en banc granted (Feb. 26, 2010). The Second Circuit denied en banc rehearing in a similar case and the defendants have moved to stay the mandate pending application for certiorari to the United States Supreme Court. See Connecticut v. American Elec. Power Co., 582 F.3d 309 (2d Cir. 2009), rehearing en banc denied (March 5, 2010), application to stay mandate pending certiorari filed (March 11, 2010). Another global warming case, which was recently dismissed, is now pending in the Ninth Circuit. See Native Village of Kivalina v. Exxon Corp., (2000 N.D. Cal) 2009 U.S. Dist Lexis 99563, No. 09-17490 (9th Cir.). If its advocates succeed, the “monster that will devour in one gulp the entire law of torts” ⁴See In re Lead Paint Litig., 924 A.2d 484, 505 (N.J. 2007)(holding that, if public nuisance law expanded beyond its traditional boundaries, it “would become a monster that would devour in one gulp the entire law of tort.”); See also Tioga Pub. Sch. Dist. No. 15 v. U.S. Gypsum Co
., 984 F.2d 915, 921 (8th Cir. 1993)(originating the quote above). may be afforded a prime seat at the banquet.

This enthusiasm should be tempered, however, by caution–caution advised by wise common-law jurists who warned against abrupt shifts in societal norms through judicial action alone. Although the “common law” may have originated within the judiciary, citizens have increasingly imposed legislative and regulatory policies to guide and regulate its discretion. These began as early as the Magna Carta, proceeded through the industrial revolution, and matured into today’s complex legislative and regulatory environment. In today’s legal landscape where conduct and business activities are thoroughly regulated by statutes and administrative rules, there are comparatively few areas where a “common-law” court is free to act without legislative influence. ⁵See Arthur T. von Mehren, Some Reflections on Codification and Case Law in the Twenty-First Century, 31 U.C. Davis L. Rev. 659, 660 (1997) (“Codification and case law embody two contrasting, yet complimentary, principles of justice… . In every legal system, regardless of where it falls on the spectrum between a pure system of codified law and a pure system of case law, the principles of these two approaches are in tension”).

Moreover, even when the political branches have not acted in an area, common-law courts are not necessarily free to “fill the void.” As we will see below, some controversies—even when framed as an “ordinary” public nuisance lawsuit—involve issues where courts lack the tools and resources to reach results that are principled, rational, and based upon reasoned distinctions. When such non-justiciable “political questions” are raised, courts wisely defer to the political branches of government, which are far better equipped than the judiciary to amass and evaluate vast amounts of data bearing upon complex and dynamic issues. Thus, irrespective of whether the executive or legislative branches have spoken, due respect for their constitutional responsibilities–combined with awareness of the judiciary’s own limitations–can motivate judicial restraint. Although the ancients concluded that “nature abhors a vacuum,” ⁶Attributed to Aristotle, see generally, Patrick J. Hurley, A Concise Introduction to Logic (2008) at 551-552. The belief persisted for centuries until certain fallacies were demonstrated by the experiments of Galileo and Torricelli. Id. Nevertheless, the saying perhaps offers wisdom for public nuisance cases. As Thoreau observed, “Nature abhors a vacuum, and if I can only walk with sufficient carelessness, I am sure to be filled.” Henry David Thoreau, Early Spring in Massachusetts (1881) at 34-35. In the absence of guiding principles, errors are as likely to fill the jurisprudential mind as wisdom. there are circumstances in the law where uncharted voids should be eschewed.

The Intersection Between Statutory and Common Law

Over the last century, common law and statutory codification systems began to converge. To a greater or lesser extent, codified systems departed from their rigidity and became more “fact-specific” in their approaches, and common-law systems increasingly stressed the advantages and importance of “structure, coherence, and predictability” in judicial administration. ⁷Id. at 667. As early as 1908, Roscoe Pound was convinced that judges should take a more responsive attitude toward legislation. ⁸Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1906) (noting with disdain, even at that early date, the “indifference, if not contempt, with which [legislation] is being regarded by courts and lawyers”). Pound demonstrated that antiquated ideas, such as “statutes in derogation of the common law should be strictly construed,” were inappropriate, and advised that courts should refer to the principles set forth by legislators when applying the common law. ⁹Id. at 406-07. As he stated:

Courts are fond of saying that they apply old principles to new situations. But at times they must apply new principles to situations old and new. The new principles are in legislation. The old principles are in common law. The former are as much to be respected and made effective as the latter–probably more so as our legislation improves. ¹⁰Id.

Justice Harlan Stone demonstrated the continuity of this view in 1936 when he concluded: “I can find in the history and principles of the common law no adequate reason for our failure to treat a statute much more as we treat a judicial precedent, as both a declaration and source of law, and as a premise for legal reasoning.” ¹¹Harlan F. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 13-14 (1936) (“Apart from its command, the social policy and judgment, expressed in legislation by the lawmaking agency which is supreme, would seem to merit that judicial recognition which is freely accorded to the like expression in judicial precedent.”)

Historically, legislative and regulatory enactments informed and guided the judiciary in the context of property rights, especially those involving expectations that landlords should be responsible for maintaining property in a healthy condition. For example, Justice Cardozo stressed the importance of legislative policies, such as housing codes. Although the common law imposed no duty to repair, and required tenants to pay rent even when housing was unsuitable, the widespread adoption of housing codes led courts to discard those principles. In one of the first cases to do so, Judge Cardozo held that the code “changed the measure of [the landlord’s] burden,” and used the statute to guide and inform his decision regarding whether to reform a common-law doctrine. ¹²Altz v. Leiberson, 134 N.E. 703 (N.Y. 1922). Other common-law developments regarding the duties owed by landlords to tenants adopted the same approach. For example, in allowing tenants to sue landlords for injuries caused by defective premises, Judge Bazelon recognized that legislatively established duties reflect contemporary community values and that “the law of torts can only be out of joint with community standards if it ignores the existence of such duties.” ¹³Whetzel v. Jess Fisher Mgmt. Co., 282 F.2d 943 (D.C. Cir. 1960). See also, Pines v. Perssion, 111 N.W.2d 409, 412-13 (Wis. 1961) (“The legislature has made a policy judgment–that it is socially (and politically) desirable to impose these duties on a property owner–which has rendered the old common-law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards”); Boston Hous. Auth. v. Hemmingway, 293 N.E.2d 831, 840 (Mass. 1973) (“Thus, we are confronted with a situation where the legislation’s establishment of policy carries significance beyond the particular scope of each of the statutes involved.”)

Today, scholars recognize that societies and economies are so “complex and interrelated” that jurists need to draw upon the universe of common law and statutory codifications to administer justice effectively. ¹⁴See von Mehren supra note 6 at 670 (“The experience of the twentieth century makes clear that, as societies and economies become increasingly complex and interrelated, legal orders need to draw on both the civil law and the common-law traditions in thinking about law and its administration… . The twenty-first century will doubtless witness a continuation of this tendency.”); see also Lewis A. Grossman, Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anticodification, 19 Yale J. L. & Human 149, 163 (2007) (Modern civil law theorists “have assumed an increasingly flexible attitude toward traditional civil law principles.”) As a result, in modern America, the common law does not operate in a vacuum, but rather exists within a dynamic and interactive democracy that informs, guides and, at times, constrains its creativity.

When there are legislative and regulatory policies that define and deal with an issue, those policies must be considered before determining who, if anyone, is responsible for creating and, ultimately, for abating a public nuisance in the owner’s premises. ¹⁵See People ex rel. Gallo v. Acuna, 929 P.2d 596, 614 (Cal. 1997) cert. denied, 117 S. Ct. 2513 (1997) (discussing legislative efforts to address gang activity); State v. Lead Indus. Assoc., Inc., 951 A.2d at 438-39 (discussing the legislative response to childhood lead poisoning); In re: Lead Paint Litigation, 924 A.2d at 491-94 (reviewing legislative efforts to address childhood lead poisoning). Such a decision is fundamentally one of public policy, and in the judicial sphere, it can only be explained if it can be plausibly derived from policies that originate outside the courtroom. As Justice Linde explained in his critical article: “[T]he explanation must identify a public source of policy outside the court itself, if the decision is to be judicial rather than legislative. A court may determine some facts as well or better than legislators, but it cannot derive public policy from a recital of facts.” ¹⁶Hans A. Linde, Courts and Torts: “Public Policy” Without Public Politics?, 28 Val. U. L. Rev. 821, 852 (1994). According to Justice Linde:

Style shapes how a court functions as well as how it is perceived. The decisive difference, to repeat, is that legislation is legitimately political and judging is not. Unless a court can attribute public policy to a politically accountable source, it must resolve novel issues of liability within a matrix of statutes and tort principles without claiming public policy for its own decision. Only this preserves the distinction between the adjudicative and the legislative function. ¹⁷Id. at 853.

Consistent with this observation, “common-law” courts must fully and fairly consider the complete “matrix” of the jurisdiction’s statutes, regulations and common-law principles before rendering their judgments. In such a complex and interactive environment, courts cannot appropriately rest their decisions solely on “common-law” grounds. Courts are not “free” to disregard legislative choices and create their own “common-law” remedies merely because the legislature does not expressly forbid public nuisance liability in a particular context.

Using this perspective, the Supreme Court of New Jersey declined to engage in common-law creativity in its public nuisance decision regarding lead paint. The court rejected the notion that the state’s legislature, which had enacted a comprehensive scheme to address environmental lead hazards, intended to permit “plaintiffs to supplant an ordinary product liability claim with a separate [public-nuisance] cause of action as to which there [were] apparently no bounds.” ¹⁸See In re Lead Paint Litigation, 924 A.2d 484, 505 (N.J. 2007). The court recognized that it was “only in light of [the existing] statutory framework that the arguments of the parties concerning the viability of a cause of action sounding in public nuisance [could] be evaluated.” ¹⁹Id. at 494. After reviewing the existing statutory framework, the court concluded that the New Jersey Legislature, unlike the plaintiffs, had used the term “public nuisance” in a manner consistent with the term’s historical underpinnings, ²⁰I
d
. at 505. and “maintain[ed] a focus on the owner of premises as the actor responsible for the public nuisance itself.” ²¹Id. at 500. Since the leaded products were only dangerous when they deteriorated after the property owners failed to maintain their premises, the manufacturers of lead paint products were not responsible for creating a public nuisance. In another landmark case involving the same parties, the Rhode Island Supreme Court reached a similar conclusion. ²²State v. Lead Indus. Assoc. Inc., 951 A.2d 428 (R.I. 2008). For a complete history of the litigation that resulted in the landmark Rhode Island decision, see Faulk and Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, supra note 2 at 981-1005; see also Bender, Faulk and Gray, The Mouse Roars! Rhode Island High Court Rejects Expansion of Public Nuisance, Washington Legal Foundation (July 2008).

Although similar lead paint litigation is pending in California, ²³See Santa Clara v. Atlantic Richfield Co., 40 Cal. Rptr. 3d 313 (2006)(remanding case after initial dismissal on the pleadings). Another ruling from the Santa Clara case regarding the propriety of governmental use of contingent fee counsel is presently pending before the California Supreme Court. See County of Santa Clara v. Atlantic Richfield Co., 161 Cal. App. 4th 1140 (Cal. Ct. App. 2008) review granted (July 23, 2008), that state’s legal history is markedly hostile to common-law innovation in the public nuisance arena. In California, statutory priorities were incorporated into the very foundations of the state’s legal system, and there literally is no point in the state’s history when judicial discretion has been governed exclusively by common-law traditions. While the state maintains its original “general” public nuisance statute, the California Supreme Court plainly disfavors using that measure as a “catch all” basis for increasingly inventive claims. Noting the amorphous, vague and uncertain nature of the term “nuisance,” the court noted in People v. Lim that “it is a proper function of the legislature to define those breaches of public policy which are to be considered public nuisances within the control of equity” because what society deems to be a nuisance may change over time. ²⁴Id. at 476. In this case, a prosecutor asked the court to enjoin the defendant’s gambling operations. The prosecutor alleged that the court was empowered to look outside of California’s nuisance statutes to the common law for its jurisdiction, where gambling was historically considered a public nuisance because it encouraged idle and dissolute habits. Id. at 473-74. Therefore, the court concluded that “[i]n a field where the meaning of terms is so vague and uncertain it is a proper function of the legislature to define those breaches of public policy which are to be considered public nuisances within the control of equity.” ²⁵Id. (noting that “[a]ctivity which in one period constitutes a public nuisance, such as the sale of liquor or the holding of prize fights, might not be objectionable in another”). See also, Schur v. Santa Monica, 300 P.2d 831, 835 (Cal. 1956) (“unless the conduct complained of constitutes a nuisance as declared by the Legislature, equity will not enjoin it even if it constitutes a crime”). This is particularly true where the activity can be remedied by applying criminal law unless the legislature specifically provides for an equitable remedy. ²⁶Id. The court stated that it is not impermissible to enjoin criminal activity when a clear case is present. But it was concerned about bypassing a criminal trial, thereby depriving the defendant of the protection of the higher standard of proof and leaving open the possibility that the defendant remain criminally liable for the same activity. Id. at 476-77. The ideas and principles espoused in Lim are not antiquated or outdated. Indeed, they were affirmed by the California Supreme Court in the last major public nuisance opinion it issued in 1997, ²⁷See Acuna, 929 P.2d 596 at 606 (stating that “[t]his lawmaking supremacy serves as a brake on any tendency in the courts to enjoin conduct and punish it with the contempt power under a standardless notion of what constitutes a ‘public nuisance’”); see also People ex rel. Busch v. Projection Room Theater, 5
50 P.2d 600, 613 (Cal. 1976) (Tobriner, J., dissenting). where the court expressly recognized the statutory “supremacy” that has permeated California jurisprudence since it was admitted to the Union in 1850. ²⁸See Acuna, 929 P.2d at 606 (discussing the role of the legislature to “declare a given act or condition a public nuisance” and the judiciary’s need to defer to the legislature’s supremacy to declare the law).

Under these authorities, once the legislature decides the condition or activity is a nuisance, a court cannot usurp the legislative power by determining that a violation is insignificant. ²⁹City of Bakersfield v. Miller, 410 P.2d 393, 397-98 (Cal. 1966) cert. denied, 384 U.S. 988 (1966). Instead, courts are bound to only determine “whether a statutory violation in fact exists, and whether the statute is constitutionally valid.” ³⁰Id. at 398. They are not to expand the scope of the tort beyond the limits prescribed by the statute, and they are not to decide for themselves that a condition outside the statute’s intent constitutes a public nuisance. ³¹Lim, 118 P.2d at 476 (citation omitted). When the legislative and executive branches act to codify or modify common-law rules by defining expectations, the judiciary cannot ignore the impact of these statutes and regulations merely because the plaintiff’s cause of action originated at “common law.”

Even the absence of statutes in a particular area, however, does not necessarily condone judicial adventures. ³²See Kalian v. People Acting Through Cmty. Effort Inc. (PACE), 408 A.2d 608, 609 (R.I. 1979) (construing statutory silence on the existence of a claim as deliberate exclusion of the claim); see also, United States v. Philip Morris USA Inc., 396 F.3d 1190, 1200 (D.C. Cir. 2005) (concluding that Congress’ “care in formulating … a carefully crafted and detailed enforcement scheme” was “strong evidence” that “Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly”). As the Rhode Island Supreme Court recently cautioned:

It is not for this Court to assume a legislative function when the General Assembly chooses to remain silent … To do otherwise, even if based on sound policy and the best of intentions, would be to substitute our will for that of a body democratically elected by the citizens of this state and to overplay our proper role in the theater of Rhode Island government. ³³DeSantis v. Prelle, 891 A.2d 873, 881 (R.I. 2006) (declining to extend statute-of-limitations period by judicial rule when General Assembly had opportunity to change period but refrained). See also Henry v. Cherry & Webb, 30 R.I. 13, 38, 73 A. 97, 107 (1909); Bandoni v. State, 715 A.2d 580, 596 (R.I. 1998) (“[T]he function of adjusting remedies to rights is a legislative responsibility rather than a judicial task.”).

Instead of viewing legislative silence as a “liberating” factor, a court must evaluate claims within the context of priorities previously declared by the people’s elected representatives, consider the extent to which those policies would be impacted by its decision, and then make a “principled response” by deciding whether the requested remedy is truly within the competence of the judiciary. ³⁴See Harvey S. Perlman, Thoughts on the Role of Legislation in Tort Cases, 36 Willamette L. Rev. 813, 859 (2000) (“If a statute was enacted to protect a class of persons from a specified risk, courts should not assume from legislative silence that the legislature meant to reject private liability any more than courts should imply a legislative intent to create liability. Such a protective statute calls for formulation of a principled response, taking into account the respective roles and competencies of the court and the legislature.”)

Relationship to the “Political Question” Doctrine

This concept is remarkably similar to portions of the “political question” doctrine declared by the Supreme Court in Baker v. Carr
³⁵369 U.S. 186 (1962). and its progeny, ³⁶See e.g., Vieth v. Jubelirer, 541 U.S. 267 (2004). where the Court held that courts should not entertain a dispute when they lack “judicially discoverable and manageable standards for resolving it.” ³⁷This requirement is the second of several tests listed in Baker v. Carr, and is one of the most critical. See id. at 278 (“These tests are probably listed in descending order of both importance and certainty.”). As Justice Scalia stated for the plurality in Vieth v. Jubelirer, ³⁸Id. “[o]ne of the most obvious limitations imposed by that requirement is that judicial action must be governed by standard, by rule. Laws promulgated by the Legislative Branch can be inconsistent, illogical, and ad hoc; law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.” ³⁹Id. (emphasis in original). The crux of the political question inquiry, “is thus not whether the case is unmanageable in the sense of being large, complicated, or otherwise difficult to tackle from a logistical standpoint. Rather, courts must ask whether they have the legal tools to reach a ruling that is ‘principled, rational, and based upon reasoned distinctions.’” ⁴⁰Id.

There is plainly an overlap between these jurisprudential principles, and each should inform courts when advocates invite creative excursions. In either context, respect for the legislative and executive spheres is critical. In public nuisance cases based upon global climate change, where no standards presently exist to measure responsibility, “political question” arguments require a comparative evaluation of the resources needed to craft appropriate rules. ⁴¹“Political question” considerations are primary concerns in the pending public nuisance cases involving global climate change. See generally, Faulk and Gray, Premature Burial? The Resuscitation of Public Nuisance Litigation, supra note 2. In other “complex and dynamic” issues, the United States Supreme Court has recognized that, as an institution, “the [legislature] is far better equipped than the judiciary to ‘amass and evaluate the vast amounts of data’ bearing upon “complex and dynamic” issues. ⁴²Turner Broadcasting Sys. Inc. v. Federal Communications Comm’n, 114 S. Ct. 2445, 2471 (1994) (Kennedy, J., plurality) (citing Walters v. National Ass’n of Radiation Survivors, 105 S. Ct. 3180, 3194, n. 12 (1985)). A sampling of decisions from various state courts yields similar appraisals. ⁴³See, e.g., Ferreira v. Strack, 652 A.2d 965, 968 (R.I. 1995) (emphasis added) (declining to judicially create tort liability for social hosts): “The imposition of liability … has such serious implications [then] any action taken should be taken by the Legislature after careful investigation, scrutiny, and debate. It is abundantly clear that greater legislative resources and the opportunity for broad public input would more readily enable the Legislature to fashion an appropriate remedy to deal with the scope and severity of this problem. See also City of Los Angeles v. Alameda Books Inc, 122 S. Ct. 1728, 1737 (2002); Brawner v. Brawner, 327 S.W.2d 808, 812-13 (Mo. 1959) (en banc) (“Obviously, the general assembly is not only better equipped than this court to investigate and develop the facts pertinent to a determination of this phase of public policy but also has greater authority to deal with the particular problem and at the same time the related ones.”)

Unlike courts, the legislative and executive branches can consider all pertinent issues in their entirety, rather than being limited to the issues raised just by the parties involved in litigation. As a result, their policy choices are likely to strike a fairer and more effective balance between competing interests because they are based on a broad perspective and ample information. ⁴⁴See Timothy D. Lytton, Lawsuit Against the Gun Industry: A Comparative Institutional Analysis, 12 Conn. L. Rev 1247, 1271 (2000). Moreover, in contrast to courts, which lose jurisdiction upon rendition of final judgment, political branches have “evergreen” opportunities to revisit statutes and rules to create better tailored provisions. ⁴⁵See Bartnicki v. Vopper, 121 S. Ct. 1753, 1768 (2001) (Breyer, J. concurring); Bandoni v. State, supra note 32, at 585 (noting that “[i]n the event the Legislature should choose to [modify the statute], there is no question that it has the capacity to do so at any time…. But it is not the function of this Court to act as a super legislative body and rewrite or amend statutes already enacted by the General Assembly”).

Political branches are also better equipped to deal with broad issues because they represent a quorum of the people, unlike trial and appellate courts. While the “process of enacting a statute” is “perhaps not always perfect, [it] includes deliberation and an opportunity for compromise and amendment and usually committee studies and hearing.” ⁴⁶Carver v. Nixon, 72 F.3d 633, 645 (8th Cir. 1995). Before any law is enacted, it must garner the support of a majority of the people through their elected representatives. Once enacted, the legislation is subject to a gubernatorial veto and must judicially pass any constitutional or interpretational challenges. These are the built-in “checks and balances” that make our system of government work so effectively. When courts bypass these political safeguards to implement their own “common-law” solutions, the judiciary–the least political branch of government–declares policy unilaterally and the “will of the people” is expressed not through their elected representatives, but through a plebiscite of jurors. Short of concentrating power in a single person, it is difficult to imagine a less “representative” process.

In these and other public nuisance contexts, such considerations should predictably result in judicial deference–not wholesale and unilateral “common-law” reform. Such questioning will typically expose “the limits within which courts, lacking the tools of regulation and inspection, of taxation and subsidies, and of direct social services, can tackle large-scale problems of health care for injured persons, of income replacement, of safe housing and products and medical practices, of insurance, of employment, and of economic efficiency….” ⁴⁷See Linde, supra note 16, at 853. With all due respect to the judges who decided Connecticut v. American Electric Power, climate change cases are not “ordinary tort suits” which can be litigated under an existing legal framework. ⁴⁸See Connecticut v. American Elec. Power, 582 F.3d at 330-331 (finding public nuisance suit based on global climate change to be “an ordinary tort suit,” where there was “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.” Instead, they frame wholly new claims by which plaintiffs seek to hold an arbitrarily selected group of defendants liable for the consequences of a “tort” committed universally by nature’s creatures and natural forces.

Public nuisance cases traditionally are contained within defined geographical dimensions. They are localized and linked to impairment of property, or to injuries resulting from such effects. ⁴⁹See Gifford, supra note 2, at 830-833. Significantly, all of the precedents upon which the recent climate change cases relied were within that tradition. ⁵⁰See, e.g., Connecticut v. American Elec. Power, 582 F.3d at 326-329. Each case concerned a localized controversy traceable to specific actions by identifiable defendants, such as sewage discharges into waterways, ⁵¹See, e.g., Illinois v. City of Milwaukee, 406 U.S. 91 (1972); New York v. New Jersey, 256 U.S. 296 (1921); Missouri v. Illinois, 180 U.S. 208 (1901). noxious emissions from copper foundries destroying forests, orchards, and crops, ⁵²Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907). dumping garbage into the ocean that fouled beaches, ⁵³New Jersey v. City of New York, 283 U.S. 473 (1931). irrigation projects that contributed to flooding, ⁵⁴North Dakota v. Minnesota, 263 U.S. 365 (1923). bridges that interfered with navigation, ⁵⁵Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1851). and lake pollution by vessels transporting oil. ⁵⁶United States v. Bushey & Sons, 363 F. Supp. 110, 120-21 (D.Vt.1973), aff’d without opinion,
487 F.2d 1393 (2d Cir.1973). Although the Second Circuit’s decision cited authorities that noted that nuisance actions were “the common-law backbone of modern environmental law,” ⁵⁷See Connecticut v. American Elec. Power, 582 F.3d at 328. it failed to recognize that the history of those actions always involved defined locations and encompassed situations where the full range of defendants was either known or could be identified. ⁵⁸See generally, Faulk and Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, supra note 2, at 955-957.

Global climate change, by contrast, is boundless and, according to scientists, is caused by a universal and unlimited range of actors and events. ⁵⁹See generally, Richard O. Faulk and John S. Gray, A Lawyer’s Look at the Science of Global Climate Change., 44 World Climate Change Report 2 (BNA, March 10, 2009). A single judgment for damages, even a large one, cannot encompass the universe of causal factors or participants in global warming. There is no “judicially discoverable” standard by which a court can distinguish one exhalant’s contribution from vehicular or industrial emissions. There are no processes whereby the biosphere of emissions from every animal on the planet can be isolated, and the role of titanic natural forces, such as volcanism, cannot be calculated. Simply stated, the scope of the alleged controversy matters. Using public nuisance to redress global climate change far exceeds the tort’s common-law boundaries.

Despite the Second Circuit’s holding that its ruling was consistent with the Restatement (Second) of Torts, ⁶⁰See Connecticut v. American Elec. Power, 582 F.3d at 328. it failed to heed Dean Prosser’s stern warning in his comments to §821B: “[I]f a defendant’s conduct … does not come within one of the traditional categories of the common-law crime of public nuisance or is not prohibited by a legislative act, the court is acting without an established and recognized standard.” ⁶¹RESTATEMENT (SECOND) OF TORTS §821B cmt. e. (1979). Dean Prosser’s wise advice, as well as history’s experience with public nuisance as a tort circumscribed by geographic limits and caused by identifiable actors, demonstrate that it is impossible to render a judgment in climate change cases that is “principled, rational, and based upon reasoned distinctions.” Consistent with Baker v. Carr, this concern does not concern the manageability of climate change litigation. Instead, it concerns the impossibility of creating and applying a rule of liability fairly and rationally to reach a principled decision.

Contrary to the Second Circuit’s concerns, the issue is not whether federal common law regarding public nuisance has been “displaced” by Congress or the EPA. ⁶²See Connecticut v. American Elec. Power, 582 F.3d at 374-381 (discussing whether the federal common-law remedy of public nuisance must be applied by the courts unless “displaced” by congressional or regulatory measures). Legislative and regulatory silence is not dispositive of whether courts are competent to decide climate change controversies. The absence of action by the political branches does not necessarily empower the courts. Instead, the courts must decide whether they are capable of resolving the cases justly, whether they have the resources to investigate and devise a proper remedy, and whether they are capable of creating definitive standards and rules to resolve the controversies fairly. As such, the objection goes to the very heart of the “political question” doctrine.
⁶³The Supreme Court clearly recognizes that such scenarios exist. See Vieth, supra note 35, at 278 (Sometimes, however, the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.”)(emphasis added).

Conclusion

If, as Justice Holmes counsels, the development of the common law should be “molar and molecular,” ⁶⁴See Southern Pacific Co. v. Jensen, 244 U.S. 205, 201 (1917) (Holmes, J.) (“I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.”) See also, Benjamin Cardozo, The Nature of the Judicial Process 113 (1921) (stating that courts make law only within the “gaps” and “open spaces of the law”). Neither Holmes nor Cardozo can be cited to support deliberate, large-scale reversals of doctrine in the name of public policy. the wholesale transmutation of “public nuisance” concepts to authorize, for example, a massive judicially-created environmental bureaucracy–answerable only to a single judge–requires more rumination and digestion than the judiciary alone can prudently provide. Enthusiasts who advocate public nuisance litigation as a universal panacea should pay careful attention to the “rumination” analogy. Despite the tort’s ravenous reputation as a potential “monster” capable of devouring time-honored legal precedents in a single gulp, that appetite is constrained by the common law’s tendencies to move in a “molar and molecular” fashion–to chew thoroughly–and then to swallow, if at all, only small bits at a time.

Faced with allegations of planetary liability, wise jurists may decide that they lack the resources and tools to comprehensively investigate, thoroughly evaluate, and fairly resolve public nuisance claims based upon global climate change. After considering their unique role in our partitioned system of government, judges may decide that complex environmental bureaucracies can only be reliably developed and justly administered outside their limited realm. They may conclude that judicial intrusion into such matters usurps the legislature’s and the executive’s prerogatives, especially when they are urged to base sweeping liability determinations on narrow “case by case” standards limited by a record generated solely by litigants, and by budgets constrained by judicial appropriations. Under such circumstances, the limits of judicial competency suggest that forbearance, rather than adventure, may be the most “principled response.”