State Public Nuisance Claims and Climate Change Adaptation

This Article explores the potential for state public nuisance claims to facilitate adaptation, resource protection, and other climate change responses by coastal communities in California. The California public nuisance actions represent just the latest chapter in efforts to spur responses to climate change and attribute responsibility for climate change through the common law. Part II of this Article describes the California public nuisance lawsuits and situates them in the context of common law actions directed against climate change. Part III considers the preliminary defenses that defendants have raised and could raise in the California public nuisance lawsuits, including the existence of state common law in this context, separation of powers and the political question doctrine, displacement and preemption, and standing. Part IV considers the potential merits of the plaintiffs’ public nuisance claims under California law

Deciphering the Chemical Soup: Using Public Nuisance to Compel Chemical Testing

The problem of toxic ignorance plagues modern society. On a daily basis, each of us is exposed to hundreds of chemicals, the vast majority of which have been subject to little or no testing to determine whether they are toxic to humans or the environment. Many of these chemicals may turn out to be harmless. Some, however, may cause cancer, reproductive defects, and other harms. In toto, chemicals are believed to be responsible for tens of thousands of deaths per year. The systematic failure of manufacturers and distributors to test chemical substances is a rational response to marketplace incentives, tort liability rules, and existing chemical regulations. To address the problem of toxic ignorance, this Article proposes the recognition of a new type of public nuisance to compel chemical testing. In contrast to conventional toxic tort litigation, which requires a showing of physical injury, the failure to test itself would constitute a public nuisance. Inadequate testing puts the public health at risk, and the resultant lack of information undermines the ability of governments and individuals to protect public health. In addition to explaining the basis for applying public nuisance doctrine to the failure to test, the Article also examines practical considerations relating to how courts would enforce the duty to conduct testing

Public Insurance as a Lever for Semi-Managed Climate Retreat

Private insurers are declining to issue or renew homeowner policies in California, Colorado, Florida, and Louisiana following massive payouts due to hurricane and wildfire damage in recent years. As climate change worsens, more private insurers will withdraw from property insurance markets. Governments, particularly at the state level, will likely expand their insurance programs to fill the gap. Just as the federal government now underwrites most flood insurance policies, public insurers will come to dominate the fire and wind insurance markets. Property insurance can generate price signals reflecting the risks of living in climate-vulnerable areas. However, public insurance programs often prioritize insurance availability and affordability while muting or eliminating accurate price signals. Because premiums collected by public insurance programs usually do not cover the payouts that follow a catastrophic event, expanding these programs could prove financially disastrous. Unfortunately, by offering underpriced coverage, such programs have encouraged development in climate-vulnerable areas, such as floodplains and the wildland-urban interface. Managed retreat policies aim to move people and communities out of climate-vulnerable areas. Typically involving public buyouts of private property, managed retreat can mitigate the damage associated with climate change, counter inefficient building practices, and facilitate disaster recovery. Yet managed retreat is logistically and politically challenging, and buyout programs thus far have had limited impact. Linking public insurance with buyouts can promote access to insurance coverage, break the disaster-rebuild cycle, and jump-start the relocation of people and communities from climate-vulnerable areas. This Article proposes that public insurance coverage in climate-vulnerable areas be made contingent on insureds agreeing to buyouts if property damage exceeds a predetermined threshold amount. If a covered event causes property damage above the threshold, the government will choose between paying on the insurance policy or purchasing the property. The government’s choice would depend on funding availability, the value of the property as open space, the presence of other buyout properties nearby, the history of repetitive loss, and other relevant factors. The proposed mechanism, which can be incorporated into federal or state-backed insurance programs, would make the most of disaster-caused damage by compelling retreat after such damage has occurred. It would also sidestep some of the difficulties that have hampered voluntary buyout programs. Part I of this Article discusses the growing reluctance of private insurers to offer policies in climate-vulnerable areas, the accompanying rise of state-backed insurance, and ongoing managed retreat efforts. Part II considers the objectives of public insurance programs. Part III shows how governments might try to advance these objectives as climate change worsens. In the context of a dramatically expanded government role as an insurer of last resort, the proposal can facilitate managed retreat without compromising these objectives

Power to the People: Restoring the Public Voice in Environmental Law

Although the last forty years of environmental law have witnessed some successes, they have also increasingly revealed the limitations of existing laws and regulatory structures. Congress has been unable to pass substantial environmental legislation in recent years, notwithstanding widespread recognition of the need for better tools for responding to climate change, toxic chemicals, non-point source water pollution, and other problems. In addition, the Environmental Protection Agency (“EPA”) has struggled in the wake of limited resources and politicization to effectively use the tools it has, and its rulemaking processes are often dominated by industry and other repeat players. To deal with the environmental challenges we face, we must better account for the interests of the general public and harness the insights and goodwill of those outside the conventional regulatory state. This article proposes two mechanisms for doing so: (1) establishment of regulatory contrarians within the EPA to serve as a voice for underrepresented interests and future generations in agency proceedings; and (2) government sanction of environmental certification systems to facilitate more sustainable purchasing decisions

Dodging Public Nuisance

Public nuisance claims against fossil fuel companies, drug companies, lead paint manufacturers, and other industries have raised the specter of onerous abatement orders and damage awards. While courts sometimes have rejected these industry-oriented public nuisance claims on their substantive merits, in climate change cases federal district courts have turned to doctrines of avoidance—including jurisdictional defenses and justiciability doctrines—to dismiss cases and avoid reaching the substantive merits. This dodging of public nuisance, often supported by questionable legal analysis, not only undermines the functions of tort law, but also cuts short important discussions between the judiciary, the political branches, and the broader public. Although plaintiffs ultimately may not succeed, courts should fulfill their responsibility to address public nuisance claims on their substantive merits, rather than reflexively relying on avoidance doctrines to dodge such claims

Fig Leaves, Pipe Dreams, and Myopia: Too-Easy Solutions in Environmental Law

Much of environmental law and policy rests on an unspoken premise that accomplishing environmental goals may not require addressing the root causes of environmental problems. For example, rather than regulating risks directly, society may adopt warnings that merely avoid risk, and rather than limiting plastic use and reducing plastic waste, society may adopt recycling programs. Such approaches may be well-intended and come at a relatively low economic or political cost. However, they often prove ineffective, or even harmful, and they may mislead society into believing that further responses are unnecessary. This Article proposes the concept of too-easy solutions to describe these approaches. Too-easy solutions can be classified into three subcategories: (1) fig leaves, policy approaches that appear to do something about a problem without necessarily solving it; (2) pipe dreams, inherently flawed policy approaches adopted with the good faith expectation of solving the problem; and (3) myopic solutions, policy approaches that address part of the problem but may impede its overall resolution. Too-easy-solutions analysis can serve as a powerful mechanism for evaluating policies, facilitating the adoption of more effective approaches, and improving decision-making in the environmental arena and other areas as well

Making Net Zero Matter

In recent months, dozens of countries and thousands of businesses have pledged to achieve net zero greenhouse gas emissions. However, net zero often means different things to different entities, and it is often uncertain how net zero pledges—which set targets years or decades from the present—will be met. This Article considers the motivations behind net zero pledges, highlights the underappreciated role of carbon removal in net zero efforts, and identifies mechanisms for encouraging the accomplishment of net zero goals. Two key strategies are essential to making net zero targets matter. First, society should develop and implement accountability and enforcement mechanisms to promote follow through on net zero commitments. These mechanisms include disclosure standards, benchmarks, contractual arrangements, and legal claims under securities and consumer protection laws. Second, net zero pledges should incorporate distinct targets for emissions reduction and carbon removal. Carbon mitigation and carbon removal differ in significant ways with respect to verifiability, permanence, readiness, and risks. Distinguishing carbon mitigation and carbon removal in net zero goals is essential to avoid undermining efforts to achieve climate goals, shifting the burdens of climate action to vulnerable populations or future generations, and increasing societal, health, and environmental risks