Public nuisance and climate change: The common law's solutions to the plaintiff, defendant and causation problems

Litigation relating to climate change is on the rise, yet outside the United States few efforts have been made to bring private actions in public nuisance seeking injunctive relief to require a defendant to reduce its emissions. This article examines three key doctrinal challenges facing a plaintiff...

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Bibliographic Details
Published inModern law review Vol. 85; no. 5; pp. 1136 - 1167
Main Author Bullock, David
Format Journal Article
LanguageEnglish
Published Oxford Blackwell Publishing Ltd 01.09.2022
Subjects
Actions and defenses
Causality
Change agents
Climate
Climate change
Climatic changes
Collective action
Common law
Greenhouses
Jurisdiction
Litigation
Prospects
Public nuisance
Tort
Torts
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Summary:Litigation relating to climate change is on the rise, yet outside the United States few efforts have been made to bring private actions in public nuisance seeking injunctive relief to require a defendant to reduce its emissions. This article examines three key doctrinal challenges facing a plaintiff in a public nuisance action connected to climate change: qualifying as a plaintiff; delineating a defendant class; and dealing with multiple sources of emissions. It argues that the tort of public nuisance has well-developed mechanisms able to solve these challenges in the context of other collective action problems,which can also be deployed in the context of climate change. These challenges facing a plaintiff in a climate changed-based public nuisance case can be overcome without creating new law, enhancing the prospects of a successful claim being brought in a common law jurisdiction.
Bibliography:MODERN LAW REVIEW, Vol. 85, No. 5, Sep 2022, 1136-1167
Informit, Melbourne (Vic)
litigation, discussed in the article. The views expressed here are my own.
v
Fonterra
SJD Candidate, University of Toronto Faculty of Law and Vanier CGS scholar. I would like to thank Arthur Ripstein and Jutta Brunnée for their comments on an earlier version of this article. My thanks also to the anonymous reviewers for their comments. I have acted as one of the counsel for the plaintiff in the
Smith
ISSN:0026-7961
1468-2230
DOI:10.1111/1468-2230.12732