Law Commons^™

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the enactment of federal regulatory statutes displaces federal common law actions for interstate pollution, such enactments do not necessarily preempt state common law actions, even where pollution crosses state boundaries, as it is more difficult to preempt state common law than it is to displace federal common …