Private Nuisance as a Litigation Strategy for Climate Change

Abstract

In Bell v. Cheswick Generation Station 734 F.3d 188 (3d Cir. 2013), the 3rd Circuit Court decided that the Clean Air Act could not preempt state based private nuisance claims. In other words, private individuals and parties could sue polluters for interference in the use and enjoyment of their land as though it were any ordinary property dispute. This ran contrary to the way the rule was typically applied: because there was a federal statute (the Clean Air Act) that governed air pollution, state based remedies were not available to injured parties. This research explores how this decision came to be and how it will affect the future of the Clean Air Act and climate change litigation. It seeks to make legal jargon plain and climate change concepts accessible to anyone. The researcher determines that the critics of the Bell decision have based their arguments on faulty logic, and that the decision is both fair and just. The tactic of state based private nuisance claims as a way to litigate greenhouse gas emissions, if used more seriously and more often, would provide a serious incentive to the legislature to take action on combatting climate change.