The judicial carbon tax: Reconstructing public nuisance and climate change

UCLA Law Review

Volumn 55, Issue 6, 2008, Pages 1827-1882

  Zasloff, Jonathan ^a,b  

^a Department of Law ^*

^b UNIVERSITY OF CALIFORNIA   (United States)

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EID: 53449094271     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (369)

1. Ryan v. N.Y. Cent. R.R. Co., 35 N.Y. 210, 217 (N.Y. 1866).
2. Lest the reader think that this is rhetoric of a bygone era, see Lawson v. Mgmt. Activities, Inc., 81 Cal. Rptr. 2d 745, 748 (Cal. Ct. App. 1999) (arguing that there is no such thing as the independent tort of negligent infliction of emotional distress, and stating "[i]ndeed, civilized life would not be possible if there were such a tort").
3. (AEP), 406 F. Supp. 2d 265 (S.D.N.Y. 2005). As of this writing, an appellate opinion is still pending.
4. Transcript of Oral Argument at 60, AEP, 406 F. Supp. 2d 265 (No. 05-CV-5104).
5. The plaintiffs were the states of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin, and the City of New York. The defendants were American Electric Power Company, Inc., American Electric Power Service Corporation, Southern Company, the Tennessee Valley Authority, Xcel Energy Inc., and Cinergy Corporation. AEP, 406 F. Supp. 2d at 265.
6. No. C06-05755 MJJ, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).
7. See id.;
8. AEP, 406 F. Supp. 2d at 265.
9. A third case, Corner v. Murphy Oil, No. 05-CV-436 (S.D. Miss. dismissed Aug. 30, 2007), was dismissed on August 30, 2007 by oral judgment and then was appealed to the Fifth Circuit.
10. See ARCHITECTURES FOR AGREEMENT: ADDRESSING GLOBAL CLIMATE CHANGE IN THE POST-KYOTO WORLD (Joseph E. Aldy & Robert N. Stavins eds., 2007) [hereinafter ARCHITECTURES FOR AGREEMENT].
11. See Joyeeta Gupta, Beyond Graduation and Deepening: Toward Cosmopolitan Scholarship, in ARCHITECTURES FOR AGREEMENT 116, 124, supra note 7.
12. See Thomas W. Merrill, Global Warming as a Public Nuisance, 30 COLUM. J. ENVTL. L. 293, 332-33 (2005);
13. Daniel A. Farber, Basic Compensation for Victims of Climate Change, 155 U. PENN. L. REV. 1605, 1649 (2007) ("Realistically, the greatest function of litigation may be to prod legislative action.").
14. An important exception, about which I will have more to say, is Kirsten H. Engel, Harmonising Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets Into Common Law Remedies, 155 U. PA. L. REV. 1563 (2007).
15. JESSE DUKEMINIER, JAMES E. KRIER, GREGORY S. ALEXANDER & MICHAEL H. SCHILL, PROPERTY 665 (6th ed. 2006).
16. As a system, public nuisance litigation faintly echoes Robert Ellickson's famous proposal for abolishing zoning and other forms of public land use regulation with a system of localized nuisance boards. See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973).
17. Henry D. Jacoby, Climate Favela, in ARCHITECTURES FOR AGREEMENT 270, 272, supra note 7.
18. See ROBERT NEUWIRTH, SHADOW CITIES: A BILLION SQUATTERS, A NEW URBAN WORLD 58-62 (2005); Macalester College, Favelas, http://www.macalester.edu/courses/geog61/chad/thefavel.htm (last visited Mar. 16, 2008).
19. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 86 (5th ed. 1984).
20. Similarly, William Rodgers has noted that nuisance "straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste." WILLIAM H. RODGERS, JR., 1 ENVIRONMENTAL LAW § 2.4 (1986) (footnotes omitted).
21. Many legal doctrines receive similar complaints; the winner for incoherence might well be state action doctrine, which Charles Black famously described as a "conceptual disaster area." Charles L Black, Jr., The Supreme Court 1966 Term, Foreword: "State Action," Equal Protection, and California's Proposition 14, 81 HARV. L. REV. 69, 95 (1967).
22. RESTATEMENT (SECOND) OFTORTS § 821B(1) (1979).
23. See, e.g., David Hunter & James Salzman, Negligence in the Air: The Duty of Care in Climate Change Litigation, 155 U. PA. L REV. 1741, 1791-94 (2007).
24. See Henry E. Smith, Exclusion and Property Rules in the Law of Nuisance, 90 VA. L. REV. 965 (2004) (explaining the strict liability and negligence aspects of nuisance law).
25. Accotding to the Restatement: Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following: (a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, ot (b) whether the conduct is proscribed by a statute, ordinance, or administrative regulation, or (c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. RESTATEMENT (SECOND) OFTORTS § 821B(2).
26. See RESTATEMENT (SECOND) OFTORTS § 821B cmt. e, which states: [B]y analogy to the rules stated in § 822 [for private nuisance], the defendant is held liable for a public nuisance if his interference with the public right was intentional or was unintentional and otherwise actionable under the principles controlling liability for negligent or reckless conduct or for abnormally dangerous activities. Liability was not normally imposed for a pure accident that did not fall into one of the three traditional categories of tort liability.
27. No. C06-05755 MJJ, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).
28. (AEP), 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
29. General Motors Corp., 2007 WL 2726871, at *8, *11-12 ("[T]he Court is left to make an initial decision as to what is unreasonable in the context of carbon dioxide emissions.... [T]he adjudication of Plaintiffs claim would require the Court to balance the competing interests of reducing global warming emissions and the interests of advancing and preserving economic and industrial development. The balancing of these competing interests is the type of initial policy determination to be made by the political branches, and not this Court.") (citation omitted);
30. see also AEP, 406 F. Supp. 2d at 272-73 (arguing that balancing represents a political question).
31. Interestingly, the AEP court never sought to determine whether a balancing test was even required in the public nuisance context, but seemed to assume so. AEP cited Chevron U.S.A., Inc. v. Nat'l Res. Def. Council, 467 U.S. 837 (1984), for the necessity of the balancing test-which concerns the Clean Air Act, 42 U.S.C. § 7401 (2000), not public nuisance law.
32. See AEP, 406 F. Supp. 2d at 272.
33. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 1051 (2d Cir. 1985) (stating that the defendant "is liable for maintenance of a public nuisance irrespective of negligence or fault") (second emphasis added);
34. Commonwealth v. Barnes & Tucker Co., 319 A.2d 871, 883 (Pa. 1974) ("The absence of facts supporting concepts of negligence, foreseeability or unlawful conduct is not in the least fatal to a finding of the existence of a common law public nuisance.").
35. Even a partial excerpt from Prosser's litany should give us pause about some analogies: The term.... includes interferences with the public health, as in the case of a hogpen, the keeping of diseased animals, or a malarial pond . . . with the public peace, as by loud and disturbing noises, or an opera performance which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and vibration; with public convenience, as by obstructing a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold. KEETON ET AL., supra note 14, § 90 (citations omitted).
36. See GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 68-75 (1970).
37. See Guido Calabresi, Views and Overviews, 1967 U. ILL. LF. 600.
38. Id. at 606.
39. Id.
40. Id.
41. Id.
42. Id. at 607.
43. See infra Part IV.
44. Ironically, the best way to change consumer behavior is to place the burden on the defendants, which will raise prices. Note that this comparison between consumers and defendants does not discuss the most proper defendant. I defer that discussion to Part IV. I only hope to show that plaintiffs are not the cheapest cost avoider, which militates in favor of a strict liability approach.
45. My colleague Ann Carlson has discussed the difficulties of attempting to get consumers to consistently undertake these sorts of low-payoff, high-frequency decisions. See Ann E. Carlson, Recycling Norms, 89 CAL. L. REV. 1231 (2001).
46. See, e.g., Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 ( 1972).
47. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 177-82 (6th ed. 2003).
48. Id. at 178.
49. Id.
50. Id. at 179.
51. See Ind. Harbor Belt R.R. v. Am. Cyanamid Co., 916 F.2d 1174, 1180-81 (7th Cir. 1990) (Posner, J.) ("It is easy to see how the accident in this case might have been prevented at reasonable cost by greater care on the part of [the defendants]. It is difficult to see how it might have been prevented at reasonable cost by a change in the activity of [the defendants]. This is therefore not an apt case for strict liability.").
52. POSNER, supra note 37, at 179.
53. Admittedly, levels of care and levels of activity blur at the margin. Consider the example that Posner uses about tearing down a building. One could use blasting or use a wrecking ball. These, Posner says, would be different levels of activity. If one chooses implosion, being extremely fastidious about safety would constitute an increased level of care. See Am. Cyanamid, 916 F.2d at 1177-78.
54. But this might best be seen as a choice of characterization. Why could we not say that the activity is tearing down a building, and that the failure to use the less-dangerous wrecking ball is itself a lack of due care? See Stephen G. Gilles, Rule-Based Negligence and the Regulation of Acridity Levels, 21 J. LEGAL STUD. 319, 329-32 (1992). At some point, the discussion becomes circular; If we say that in these circumstances, blasting when one could use a wrecking ball is negligence, then that is just another way of saying that strict liability applies.
55. SULEV stands for Super Ultra Low Emissions Vehicle, which is a conventionally powered or gas-electric hybrid vehicle designed to produce minimal air pollution at their point of use, typically 90 percent less than that of an equivalent ordinary full gasoline vehicle. ZEV stands for Zero Emission Vehicle. Recently, the problems with pure ZEV technology have led to the adoption of so-called PZEVs, or Partial Zero Emission Vehicles, which have near-zero evaporative emissions and emission control equipment with a 15-year/150,000 mile warranty. See Air Res. Bd., Cal. Envtl. Prot. Agency, 2005 Zero Emission and PZEV Credit Vehicles, http://www.arb.ca.gov/ msprog/ccvl/2005sulevpzevlist.htm (last visited Apr. 30, 2008).
56. See G.J. Leasing Co. v. Union Elec. Co., 54 F.3d 379, 386 (7th Cir. 1995).
57. Judge Posner writes: Keeping a tiger in one's backyard would be an example of an abnormally hazardous activity. The hazard is such, relative to the value of the activity, that we desire not just that the owner take all due care that the tiger not escape, but that he consider seriously the possibility of getting rid of the tiger altogether; and we give him an incentive to consider this course of action by declining to make the exercise of due care a defense to a suit based on an injury caused by the other-in other words, making him strictly liable for any such an injury. Id.
58. Posner's reference to balancing should not be taken to reflect a strict liability test; it instead refers in this case to RESTATEMENT (SECOND) OF TORTS § 520(f) (1979), which, although ostensibly a part of strict liability, reflects a balancing test that runs counter to the rest of the section. See KEETON ET AL., supra note 14, § 78. The point, rather, is that strict liability forces an examination of proper activity levels.
59. This point was originally developed by my late colleague Gary Schwartz, who suggested that a comparative fault system might incentivize coopetation between the plaintiff and the defendant to avoid an accident. See Gary T. Schwartz, Contributory and Comparative Negligence, 87 YALE L.J. 697, 705-07 (1978).
60. 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
61. CALABRESI, supra note 26, at 68.
62. No. C06-05755 MJJ, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).
63. As Calabresi notes, the general deterrence approach: involves attempting... to decide what the accident costs of activities are and letting the market determine the degree to which, and the ways in which, activities are desired given such costs.... [I]t involves giving people freedom to choose whether they would rather engage in the activity and pay the costs of doing so, including accident costs, or, given the accident costs, engage in safer activities that might otherwise have seemed less desirable. Id. at 69.
64. See, e.g., DONALD L HOROWITZ, THE COURTS AND SOCIAL POLICY 264-70 (1977);
65. Peter H. Schuck, Judging Remedies: Judicial Approaches to Housing Segregation, 37 HARV. C.R.-C.L. L. REV. 289 (2002). Although Horowitz' work is dated, contemporary scholars cite it as the standard work in the field.
66. See, e.g., CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 199 n.11 (1996).
67. (AEP), 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
68. Defense attorneys argue that the AEP plaintiffs are "effectively seeking the court to require the defendants to act as if the U.S. Senate had ratified the Kyoto Protocol and the Environmental Protection Agency (EPA) had issued implementing regulations to affect Kyoto's objectives." Jeffrey A. Smith, Climate Change in the U.S. Courts, 14 ENVTL. LIABILITY 211, 215 (2006), available at http.y/www.cravath.com/ attachments/FE30D6CA46E76736852572B300668869.pdf.
69. See PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS 14-18 (1983) (noting that damages represent a "nonintrusive" remedy, while injunctions are "intrusive").
70. See Engel, supra note 9.
71. See id. at 1599-1603.
72. See, e.g., Michael Wara, Measuring the Clean Development Mechanism's Performance and Potential, 55 UCLA L. REV. 1759 (2008).
73. See, e.g., id.
74. Later on, Engel vaguely suggests that "a court might look at the degree of abatement some of the plaintiff states are requiring of their own industries," referencing New York state standards as an example. Engel, supra note 9, at 1596. But this suggestion seems to exist in some tension with the idea of a cap-and-trade system, since cap-and-trade systems do not mandate specific reductions. Rather, they simply say that all emissions must have permits, and set an overall cap. Engel also suggests that state courts should adopt the Best Available Control Technology standard from the Clean Air Act, but this idea would put the court in the long-term position of monitoring and approving technology, which is hardly the best institutional fit.
75. Engel's discussion seems to assume, without explicitly arguing, that the public nuisance law of climate change would be state, not federal - a conclusion with which I agree. See Engel, supra note 9, at 1564;
76. infra Part III.
77. A useful discussion of these differences can be found in MKT. ADVISORY COMM., CAL. AIR RES. BD., RECOMMENDATIONS FOR DESIGNING A GREENHOUSE GAS CAP-AND-TRADE SYSTEM FOR CALIFORNIA 71-72 (2007), available at http://www.climatechange.ca.gov/documents/2007-06-29_MAC_FINAL_REPORT.PDF.
78. See infra note 276.
79. The best cutoff date in my mind would be 1992, when the United States signed the United Nations Framework Convention on Climate Change (UNFCCC). Although not an enforceable treaty, the UNFCCC would certainly have put any emitter on reasonable notice that its conduct was damaging the global environment.
80. A good survey can be found in Daniel A. Farber, Adapting to Climate Change: Who Should Pay, 23 J. LAND USE & ENVTL. L. 1, 7-18 (2007).
81. Cass Sunstein estimates that India will lose nearly 5 percent of its GDP from the impact of climate change. See Cass R. Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 HARV. ENVTL. L. REV. 1, 48 fig.7 (2007).
82. A helpful preliminary discussion of compensation mechanisms, which details the already-incurred harms of climate change, is found in Farber, supra note 9.
83. A Pigouvian tax-named after the British economist Arthur Pigou (1877-1959), who originated the concept-is one intended to internalize the negative externalities of a market activity by making the activity bear all its costs. In the present case, a Pigouvian tax on a polluter would raise the cost of the polluting activity, leading to its curtailment and thus to a reduction in pollution.
84. See, e.g., WILLIAM NORDHAUS, THE CHALLENGE OF GLOBAL WARMING: ECONOMIC MODELS AND ENVIRONMENTAL POLICY 90, 91 (2007), available at http://nordhaus.econ.yale.edu/dice_mss_091107_public.pdf.
85. See, e.g., Eileen Claussen & Judith Gteenwald, Op-Ed., Cap & Trade vs. Tax: Handling Climate Change, MIAMI HERALD, July 12, 2007, at 19A, available at http://www. pewclimate.org/press_room/opinion_editorials/oped_miamih07122007 (last visited Mar. 10, 2008).
86. See, e .g., Jonathan Baert Wiener, Policy Design for International Greenhouse Gas Control, in CLIMATE CHANGE ECONOMICS AND POLICY 205, 210 (Michael A. Toman ed., 2000).
87. See Carbon Tax Ctr., Where Carbon Is Taxed, http://www.carbontax. org/progress/where-carbon-is-taxed (last visited Mar. 10, 2008).
88. This compilation observes that the only U.S. jurisdiction that has a carbon tax is Boulder, Colorado. Id.
89. Quebec has instituted a very small carbon tax, and the British Columbia government proposed one in February 2008. Id.
90. Already, it is unpopular with the electorate. Jonathan Fowlie, Carbon Tax Frowned on by B.C. Residents, VANCOUVER SUN, Mar. 8, 2008, available at http://www.canada.com/vancouversun/news/story.html?id= 0c9bdb97-6b34-447d-8094-3955bfbf72af (last visited Mar. 10, 2008).
91. For a clear demonstration of the benefits of the emissions trading program for sulfur dioxide, see, for example, Curtis Carlson, Dallas Burtraw, Maureen Cropper & Karen Palmer, Sulfur Dioxide Control by Electric Utilities: What Are the Gains From Trade? (Res. for the Future, Discussion Paper 98-44-REV, 2000), available at http://www.rff.org/Documents/RFF-DP- 98-44-REV.pdf
92. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
93. (Milwaukee I), 406 U.S. 91 (1972).
94. See id. at 99-100.
95. (AEP), 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
96. See Transcript of Oral Argument at 32-33
97. AEP, 406 F. Supp. 2d 265 (No. 05-CV-5104).
98. Water Pollution Control Act, ch. 757, 62 Stat. 1155 (repealed 1972).
99. Diversity jurisdiction was unavailable to federal district courts in Milwaukee I because states, and the local governments created by them, are not considered citizens for the purposes of diversity analysis. Thus, the Supreme Court's only recourse was to find federal question jurisdiction if it wanted to get rid of the case without turning it over to a state court.
100. William O. Douglas, Milwaukee v. Illinois: Dissent From Denial of Certiorari, 2nd Draft, at 4(1971).
101. Id. at 2.
102. Memorandum From Harry A. Blackmun to the United States Supreme Court Conference 2 (Sept. 16, 1971) [hereinafter Blackmun Memorandum].
103. Blackmun's fear of judicial headaches turned out to be true. The Milwaukee litigation eventually comprised "more than three years of pretrial discovery, a 6-month trial that entailed hundreds of exhibits and scores of witnesses, and extensive factual findings by the District Court." Milwaukee v. Illinois, 451 U.S. 304, 333 (1981) (Milwaukee 11) (Blackmun, J., dissenting).
104. In all, it took nine years to get back to the Supreme Court-which promptly declared the federal common law preempted and turned the whole exercise into "a meaningless charade." Id.
105. Blackmun Memorandum, supra note 81, at 2.
106. Texas v. Pankey, 441 F.2d 236, 241 (10th Cir. 1971).
107. Illinois v. Milwaukee (Milwaukee I), 406 U.S. 91, 99-100 (1972).
108. Pankey, 441 F.2d 236.
109. Id. at 242.
110. Milwaukee 1, 406 U.S. at 105 n.6.
111. See, e.g., Phillips Petroleum v. Shutts, 472 U.S. 797 (1985).
112. Merrill, supra note 9, at 310 (stating that adopting state law "would empower ... the litigants to manipulate the rule of decision and so defeat the goal of impartial adjudication").
113. While theoretically, federal common law would preempt such a statute, antipreemption principles would make such an event unlikely. Moreover, as will be discussed shortly, this would seem to require a role for federal common law at odds with Erie.
114. See U.S. CONST, art. Ill, § 2, cl. 2 ("In... those [cases] in which a State shall be a Party, the supreme Court shall have original Jurisdiction.").
115. 304 U.S. 64 (1938).
116. Id. at 77.
117. 304 U.S. 92 (1938).
118. Id. at 110.
119. In Hinderlider, the Colorado state engineer cut off the Colorado River from the owner of state-granted water rights, on the grounds that an interstate compact between Colorado and New Mexico subsequently approved by Congress, limited the amount of water that Colorado rights holders could take. Id. at 95-98.
120. The Colorado Supreme Court had held that the state engineer's action had violated the plaintiffs property rights, but the U.S. Supreme Court reversed the decision. Id. at 100-01.
121. It stated that the Colorado Supreme Court ignored previous U.S. Supreme Court adjudications regarding the Colorado River, which undermined the notion that the plaintiff had lost property rights, because state court adjudications could not grant rights that the state itself did not have. Id. at 102-03.
122. It also stated that the compact controlled on Constitutional grounds; the U.S. Constitution both gave the state and the U.S. Congress the right to make compacts that controlled state property rights. Id. at 103-06. It does indeed make sense to read Hinderlider as a federal common law case, for it hardly stands to reason that the U.S. Supreme Court could overrule the Colorado Supreme Court as a matter of Colorado state law.
123. 180 U.S. 208 (1901).
124. 127 S. Ct. 1438, 1454 (2007) ("When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted." (citation omitted)).
125. See Missouri, 180 U.S. at 241 ("If Missouri were an independent and sovereign state all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that remedy, we think, is found in the constitutional provisions we are considering.").
126. No. CO6-05755 MJJ, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).
127. 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
128. The critical cases were: North Dakota v. Minnesota, 263 U.S. 365 (1923);
129. New York v. New Jersey, 256 U.S. 296 (1921);
130. Kansas v. Colorado, 185 U.S. 125 (1902);
131. Missouri v. Illinois, 180 U.S. 208 (1901).
132. Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907).
133. Milwaukee I relied on Tennessee Copper, the one exception, to demonstrate that federal common law applies to more than cases between governments. See Illinois v. Milwaukee (Milwaukee I), 406 U.S. 91, 105 n.6 (1972).
134. This silence was indicative of all the pre-Erie cases. As the Pankey court recognized, "the Supreme Court has not in the past... engaged in making any distinction between federal right claims and justiciable claims of other nature in relation to permitting a State to file an original suit before it." Texas v. Pankey, 441 F.2d 236, 239 (10th Cir. 1971).
135. Milwaukee v. Illinois, 451 U.S. 304 (1981).
136. In order to keep the language clear, I will use "displacement" of federal common law, in contrast to "preemption" of state law.
137. As Thomas Merrill has cogently explained: On the one hand, the Coutt repeatedly stressed the comptehensive nature of the Clean Watet Act amendments adopted after Milwaukee I, and suggested that this new, more comprehensive version of the Act occupied the field of federal regulation of interstate pollution, to the exclusion of the common law. On the other hand, there are passages that stress that the new legislation specifically addressed the problem that the federal common law remedy adopted by the lower courts was designed to rectify-sewage overflows from a point source of water pollution subject to the federal permitting process-implying that the federal common law remedy was displaced because it conflicted with these statutory mechanisms. Merrill, supra note 9, at 312 (internal citations omitted).
138. In New England Legal Foundation v. Cosde, 666 F.2d 30 (2d Cit. 1981), the Second Circuit did not find federal common law completely displaced by the Clean Air Act because: [T]he Clean Air Act differs substantially from the Water Pollution Control Act.... For example, Justice Rehnquist, writing for the majority [in Milwaukee II] found it especially significant that under the Water Pollution Control Act the EPA regulated every point source of water pollution. Under the Clean Air Act, in contrast, the states and the EPA are not required to control effluents from every source, but only from those sources which are found by the states and the agency to threaten national ambient air quality standards.
139. Id. at 32 n.2 (citations omitted).
140. Advocates of the continuing power of federal common law point to this statement for support. See Matthew F. Pawa, Global Warming: The Ultimate Public Nuisance, in CREATIVE COMMON LAW STRATEGIES FOR PROTECTING THE ENVIRONMENT 107, 152-53 (Clifford Rechtschaffen & Denise Antolini eds., 2007).
141. This statement is a pretty frail reed. The Second Circuit did not need to find the issue of complete displacement for the outcome of the case, and thus quite prudently refused to reach the issue. Furthermore, Cosde occurred before the Title V Clean Air Act updates, which substantially augmented the Act's permitting regime. See 42 U.S.C. §§ 7661-7661(f) (2000).
142. 33 U.S.C. §§ 1341-1346 (establishing the National Pollutant Discharge Elimination System and other strict requirements for permitting any discharges into water).
143. See 42 U.S.C. §§ 7401-7515.
144. Id. § 7410(a)(2)(D).
145. Id. § 7413(a)(1).
146. Id. § 7604(a), (f)(3).
147. Id. §§ 7661-7661f.
148. Milwaukee v. Illinois, 451 U.S. 304, 313 (1981) (internal citations and quotation marks omitted).
149. Id. at 317.
150. More recent Supreme Court precedent has confirmed this interpretation. See Atherton v. FDIC, 519 U.S. 213 (1997);
151. O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994).
152. So have the circuits. See, e.g., In re Gaston & Snow, 243 F.3d 599, 606 (2d Qr. 2001 ) (noting that the ability of federal courts to fashion federal common law is "severely limited").
153. Senator Linie GMBH & Co. KG v. Sunway Line, Inc., 291 F.3d 145, 166 (2d Cir. 2002)
154. (quoting In re Oswego Barge Corp., 664 F.2d 327, 335 (2d Cir. 1985)).
155. If we adopt the Second Circuit's language literally, it is difficult not to see displacement in the air quality area, because through the Clean Air Act, Congress has certainly legislated "on the subject." Id. But that is likely too literal: Certainly Congress had legislated on water quality when the Court decided Milwaukee I.
156. See, e.g., County of Oneida, N.Y. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985).
157. See, e.g., United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1 (1st Cir. 2005).
158. See Nw. Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77, 96 (1981) ("[I]n admiralty ... the federal judiciary's lawmaking power may well be at its strongest.").
159. 507 U.S. 529 (1993).
160. Id. at 534.
161. United States v. Craft, 535 U.S. 274, 288 (2002);
162. accord Pasquantino v. United States, 544 U.S. 349, 359-60 (2005).
163. Such an argument is suggested in the State of California's supplemental brief in Brief of Plaintiff at 2-6, California v. General Motors Corp., No. 306-CV-05755 MJJ (N.D. Cal. Apr. 13, 2007).
164. Tex. Indus., Inc. v. Redcliff Matetials, Inc., 451 U.S. 630, 641 (1981).
165. The plaintiffs in AEP relied on Texas Industries to show that Milwaukee Vs broad language was still authoritative. See Oral Argument Transcript at 33, Tex. Indus., Inc., 451 U.S. 630 (No. 79-1144) (statement of Mr. Pawa). But if this was the strongest authority for them, it reveals how weak their case was on this issue.
166. There remains a significant issue regarding dormant foreign affairs preemption in the case of international litigation. See infra Part V.
167. Indeed, recent appellate precedent narrows the scope even further, refusing to create federal common law unless no state common law exists. See United States v. Las Cruces, 289 F.3d 1170 (10th Cir. 2002).
168. In Las Cruces, the federal government sought federal jurisdiction over a quiet title suit concerning water rights in the Rio Grande, and relied on Hinderlider and Milwaukee I as a basis. id. at 1175, 1185. The Tenth Circuit, however, held that "the reluctance to create common law is a core feature of federal court jurisprudence" and cited Milwaukee II for the proposition that federal common law exists only when "state law cannot be used." Id. at 1186.
169. Since New Mexico and Texas common law were available, the court reasoned, federal common law was superfluous. Id. Gone was the concern about biased state common law regimes.
170. In re Complaint of Oswego Barge Corp., 664 F.2d 327, 336 (2d Cir. 1981).
171. Id. at 339.
172. Merrill, supra note 9, at 316-17.
173. Milwaukee v. Illinois, 451 U.S. 304, 316 (1981) (internal quotation marks and citations omitted).
174. Hillsborough County v. Automated Medical Labs., 471 U.S. 707, 713 (1985).
175. Edgar v. MITE Corp., 457 U.S. 624, 631 (1982).
176. Id.
177. As indeed they did. See Defendants' Notice of Motion and Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction and for Failure to State a Claim Upon Which Relief May Be Granted at 30-32, California v. General Motors Corp., No. C06-05755 MJJ, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).
178. The Clean Air Act states that: Except as otherwise provided in sections... 7543 [automobiles], 7545(c)(4)[foels], and 7573 [aircraft] of this title... nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce ( 1 ) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.... 42 U.S.C. § 7416 (2000).
179. I will discuss whether this provision applies to state common law generally and the General Motors Corp. case in particular infra Section ULE.
180. 42 U.S.C. § 7573 ("No State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions of any air pollutant from any aircraft or engine thereof unless such standard is identical to a standard applicable to such aircraft under this part.").
181. See Int'l Paper v. Ouellette, 479 U.S. 481 (1987).
182. 479 U.S. 481.
183. Id. at 482.
184. See Merrill, supra note 9, at 316;
185. Pawa, supra note 108, 136-41.
186. Ouellette, 479 U.S. at 494.
187. Id. at 495.
188. Whitman v. Am. Trucking Ass'n, 531 U.S. 457, 464-65 (2001).
189. I do not mean to hinge the distinction on the formal difference between private and public nuisance. The claim in Ouellette was officially construed as a public nuisance claim.
190. See Ouellette v. Int'l Paper, 602 F. Supp. 264, 274 (D. Vt. 1985). Rather, the point is a substantive one based upon the actual facts and implications of the litigation itself.
191. 479 U.S. at 495-97.
192. American Electric Power, About Us, http://www.aep.com/about/default.htm (last visited Feb. 20, 2008).
193. The difficulty with identifying a source state hardly suggests that state law should simply remain out of the question. Large firms deal with differing state regulations all the time. Manufacturers of consumer products, for example, need to grapple with fifty different products liability regimes. Indeed, this is the entire premise of "our federalism." Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 490 (1939) (Frankfurter, J., concurring). In the
194. Ouellette, 479 U.S. at 498 n.19.
195. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 882 (2000) ("[T]he ability to pay damages instead of modifying one's behavior-may be relevant for pre-emption purposes.");
196. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988) (finding no preemption of tort remedies because, inter alia, "[t]he effects of direct regulation on the operation of federal projects are significantly more intrusive than the incidental regulatory effects of such an additional award provision.");
197. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984).
198. The skeptic could counter that there is an opposite problem: that of the receiving state's courts imposing excess costs on the source state. California courts might have little worry about imposing costs on coal-fired plants in Utah, for example. This imposition is indeed an issue, but less so for two reasons. First, the dormant Commerce Clause could be used in situations where source states have genuine reason to believe that costs are being imposed too strongly, since the touchstone in such cases is discriminatory treatment. See, e.g., SC. State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177, 189 (1938) ("[A state] may not, under the guise of regulation, discriminate against interstate commerce.... [S]o long as the state action does not discriminate, the burden is one which the Constitution permits...."). While a full analysis of the dormant Commerce Clause implications of state climate change regulation is beyond die scope of this Article, the Clause clearly prohibits discriminatory treatment; indeed, that is its best (and potentially only) justification.
199. See, e.g., JOHN E NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW 308-46 (6th ed. 2000);
200. Robert A. Sedler, The Negative Commerce Clause as a Restriction on State Regulation and Taxation: An Analysis in Terms of Constitutional Structure, 31 WAYNE L REV. 885, 968-99 (1985). Second, as I will try to make clear below, such a situation would serve as a healthy incentive to generate national climate change legislation. Denying recovery would have no similar incentive in Congress.
201. 42 U.S.C. § 7543(a) (2000).
202. Id.
203. Id. § 7602(k) (defining "emissions standard" as "a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis").
204. Id. § 7602(1).
205. 505 U.S. 504 (1992) (plutality opinion). Although the cited section of Cipollone is a plurality opinion, Justices Scalia and Thomas dissented on the grounds that the plurality's preemption analysis did not go far enough. Thus, a clear majority of justices endorsed the refusal to distinguish between positive law and common law. Id. at 544 (Scalia, J. dissenting, joined by Thomas, J.).
206. Pub. L No. 91-222, 84 Stat. 87 (1970), amended by, 15 U.S.C. §§ 1331-1340 (2000).
207. Cipollone, 505 U.S. at 521.
208. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959).
209. See Cipollone, 505 U.S. at 531 (Blackmun, J., dissenting, joined by Kennedy and Souter, JJ.).
210. Bates v. Dow AgroSciences LLC, 544 U.S. 431 (2005), is not to the contrary, despite some dicta that could be read otherwise. The Botes court carefully refosed to say that any reference to "requirements" never preempts state common law claims. The test, it stated, was the elements of the common-law duty in light of the federal statute's preemption prohibition. Given the narrowness of the preemption at issue in Bates, the Court's conclusion (written by the same justice) does no violence to Cipollone. Indeed, § 209(a) of the Clean Air Act is far broader than both.
211. This hypothetical contrasts with the current Bush Administration. See Ron Suskind, Without a Doubt, N.Y. TIMES MAG., Oct. 17, 2004, at 50-51, available at http://www.cs.umass. edu/~immerman/play/opinion05/WithoutADoubt.html. Suskind wrote: In the summer of 2002, after I had written an article in Esquire that the White House didn't like about Bush's former communications director, Karen Hughes, I had a meeting with a senior adviser to Bush. He expressed the White House's displeasure, and then he told me something that at the time I didn't fully comprehend-but which I now believe gets to the very heart of the Bush presidency. The aide said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality - judiciously, as you will - we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors... and you, all of you, will be left to just study what we do."
212. Id.
213. See Steven P. Croley, The Majoritarian Difjicuity : Elective Judiciaries and Ae Rule of Law, 62 U. CHI. L REV. 689, 725-26 (1995) (noting that thirty-eight out of fifty states have elected supreme courts, and even in those states without elected supreme courts, lower court judges are chosen electorally). Croley may even understate the matter somewhat. In New Jersey, for example, supreme court justices do not have life tenure but are instead appointed for terms - a provision that may have led the New Jersey Supreme Court to abandon its far-reaching Mount Laurel decisions.
214. See DAVID L. KIRP, JOHN P. DWYER & LARRY A. ROSENTHAL, OUR TOWN: RACE, HOUSING, AND THE SOUL OF SUBURBIA 93-111 (1995) (suggesting that Chief Justice Robert Wilentz may have upheld the legislative override of Mount Laurel due to fears that he would not be reappointed).
215. One legal wrinkle here might well deserve a comprehensive treatment of its own: Whether in a public nuisance case with damages as a remedy, the trial would be in front of a judge or a jury, and which decisionmaker would hear the damages phase. See U.S. CONST, amend. VII. The short answer is that the law is unsettled in both state and federal court. Tull v. United States, 481 U.S. 412 (1987), cuts both ways for federal court. On the one hand, Justice Brennan's opinion for the Court suggested that public nuisance claims did not need to be heard in front of a jury because the relief sought was equitable.
216. Id. at 420-21. On the other hand, Part III held that Congressional-mandated civil penalties were not so fondamental to the right to jury trial that the judge could determine these penalties.
217. Id. at 427. Thus, in federal court, one might conclude that the jury would determine liability, and the judge would determine damages. A footnote cannot summarize fifty state laws. If California is typical, then we simply have no answer because injunctive relief is the traditional remedy and thus no jury trial is required.
218. See, e.g., DiPirro v. Bondo Corp., 62 Cal. Rptr. 3d 722 (Cal. Ct. App. 2007). The California Supreme Court has held that the state's right to a jury trial, CAL. CONST, of 1849 art. I., § 3, derives from what was regarded as a common law right at the state's founding in 1850. But public nuisance causes of action for damages were unknown at the time. That hardly exhausts the matter, for "the right to a jury trial does not entirely depend upon the existence of a particular right of action in 1850....Rather, it exists when a current case is of the same 'class' or 'nature' as one which existed in 1850."
219. Jefferson v. County of Kern, 120 Cal. Rptr. 2d 1 (Cal. Ct. App. 2002) (citation omitted). When we are this deep in the weeds, it is best to wait for the state supreme court's resolution-or another article.
220. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1 (2007).
221. See id. at 10-13.
222. E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.LECON. & ORG. 313 (1985).
223. Hills, supra note 165, at 29.
224. A 1992 study by the National Conference of State Legislatures (NCSL) found that only thirteen out of fifty states had a filibuster-like mechanism, and only one-Texas-is a large state. See NAT'L CONFERENCE OF STATE LEGISLATURES, INSIDE THE LEGISLATIVE PROCESS 49 (1991). More recently, the NCSL conducted a survey that found twelve states not limiting debate, with Texas missing.
225. See Karl Kurtz, Filibusters Rare in State Legislatures, THE THICKET OF STATE LEGISLATURES, Feb. 15, 2007, http://ncsl.typepad.com/the_thicket/2007/02/filibusters_rar.html.
226. This question concerns the degree to which any climate change regulation should occur upstream (for example, at the point of the carbon being taken from its initial source) or downstream (for example, closer to the consumer). 1 discuss this issue in greater detail, with my own tentative recommendation in Part IV.
227. 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
228. No. C06-05755 MJJ, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).
229. 2 EMISSIONS 15-16 (2008), available at http://www.cbo.gov/ftpdocs/89xx/doc8934/02-12- Carbon.pdf.
230. Id. at 16.
231. Id.
232. See, e.g., Memorandum From Charles Komanoff Si Daniel Rosenblum, Carbon Tax Center, to a Legislative Aide for a Member of the House Ways & Means Committee (Mar. 22, 2007), available at http://www.carbontax.org/ issues/implementing-carbon-taxes.
233. An upstream carbon tax system would "entail regulating roughly 150 oil refineries, 1,460 coal mines, and 530 natural gas processing plants." CONG. BUDGET OFFICE, supra note 173, at 15.
234. Clean Air Act, § 211(c)(4)(A), 42 U.S.C. § 7545(c)(4)(A) (2000). (4)(A) Except as ottierwise provided in subparagraph (B) or (C), no State (or political subdivision thereof) may prescribe or attempt to enforce, for purposes of motor vehicle emission control, any control or prohibition respecting any characteristic or component of a fuel or fuel additive in a motor vehicle or motor vehicle engine-(i) if the Administrator has found that no control or prohibition of the characteristic or component of a foel or fuel additive under paragraph ( 1 ) is necessary and has published his finding in the Federal Register, or (ii) if the Administrator has prescribed under paragraph (1) a control or prohibition applicable to such characteristic or component of a fuel or fuel additive, unless State prohibition or control is identical to the prohibition or control prescribed by the Administrator. 42 U.S.C. § 7545(c)(4)(A) (2000).
235. 1 WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER 488 (1986 & Supp. 2007).
236. The phrase, of course, derives from Chief Justice Marshall. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819) ("An unlimited power to tax involves, necessarily, the power to destroy . . . ."). A tax that effectively became a prohibition would be another story for preemption purposes. It might also raise other legal issues.
237. Cf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223 (1928) (Holmes, J., dissenting) ("The power to tax is not the power to destroy while this Court sits.").
238. See, e.g., In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 341 F. Supp. 2d 386 (S.D.N.Y. 2004);
239. Am. Petroleum Inst. v. Jorling, 710 F. Supp. 421 (N.D.N.Y. 1989). In MTBE, the Southern District held that Section 211(c)(4) did not preempt state regulations, but this was primarily because such regulations were not for the purpose of emissions regulation, thus distinguishing it from climate change litigation.
240. See MTBE, 341 F. Supp. 2d at 406-07.
241. William A. Pizer, Practical Global Climate Policy, in ARCHITECTURES FOR AGREEMENT, supra note 7, at 280, 295.
242. See Richard N. Cooper, Alternatives to Kyoto: The Case for a Carbon Tax, in ARCHITECTURES FOR AGREEMENT, supra note 7, at 105, 114.
243. Canadian Press, B.C. Introduces Carbon Tax: Increased Fuel Costs Will Be Offset by Tax Cuts, Finance Minister Vows, THESTAR.COM (Toronto), Feb. 19, 2008, available at http://www.thestar.com/article/ 304997.
244. S. Burlington County NAACP v. Township of Mount Laurel, 456 A.2d 390 (N.J. 1983).
245. See, e.g., Peter H. Schuck, Op-Ed., Bringing Diversity to the Suburbs, N.Y. TIMES, Aug. 8, 2002, at A25, available at http://query.nytimes.com/gst/fullpage.html?res= 9C05E6D81F3BF93BA3575BC0A9649C8B63.
246. CHARLES M. HAAR, SUBURBS UNDER SIEGE: RACE, SPACE, AND AUDACIOUS JUDGES 57(1996).
247. Id. at 59.
248. To be sure, there is the challenge of determining what a firm's actual emissions are. But this issue exists in all climate change regimes, whether tax-based or cap-and-trade.
249. See, e.g., Steinhauser v. Hertz Corp., 421 F.2d 1169, 1174 (2d Cir. 1970) (allowing the defense to argue that the plaintiff, who became schizophrenic aftet a minor accident, would have become schizophrenic in a short time anyway and, thus, that damages should be reduced accordingly: "However taxing such a problem may be for men who have devoted their lives to psychiatry, it is one for which a jury is ideally suited.").
250. Skeptical readers might wonder why this question was not addressed initially in the Article, as it seems to be a threshold objection. But we cannot answer whether courts are appropriate unless we have a relatively clear idea of what we are asking them to do. Thus, this discussion has been delayed until now.
251. A search of HeinOnline yields fourteen separate articles with the phrase "countermajoritarian difficulty" in their title. See HeinOnline, http://www.heinonIine.org (last visited May 31, 2008). And this result hardly exhausts the matter, for several articles grapple with it even if they do not place it in the title. Barry Friedman has written five articles on the subject himself. The phrase derives from ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16 (1962).
252. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 642, 652 (1943) (Frankfurter, J., dissenting).
253. I must use "perhaps" if for no other reason than the inverse of a proposition is not necessarily true. All human beings are mortal, but it hardly follows that all nonhuman beings are immortal.
254. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 143-50 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (tentative ed. 1958).
255. Id. at 145 (describing the power of continuing discretion).
256. The editors of SCIENTIFIC AMERICAN have observed blandly that "[t]axes on carbon emissions are effective, but politics discourages their adoption in the U.S. More likely is a federal cap-and-trade market in which polluters get emissions permits and choose how to meet their reduction targets." Key Concepts, in Making Carbon Markets Work, SCI. AM., Dec. 2007, at 70. It should be noted that although this is a comment on an article by David Victor and Danny Cullenward, these two authors do not share this political assumption and in fact argue for the United States to move to a carbon tax.
257. Comer v. Murphy Oil, No. 05 CV-436 (S.D. Miss, dismissed Aug. 30, 2007).
258. See Comer v. Nationwide Mut. Ins. Co., No. 1:05 Cv 436 LTD RHW, 2006 WL 1066645, at *4 (S.D. Miss. Feb. 23, 2006).
259. Joby Warrick, Consensus Emerges Earth Is Warming - Now What?, WASH. POST, Nov. 12, 1997, at A16.
260. Maxwell T. Boykoff, Lost in Translation? United States Television News Coverage of Anthropogenic Climate Change, 1995-2004, 86 CLIMATIC CHANGE 1 (2008) ("[B]y way of the institutionalized journalistic norm of balanced reporting, United States television news coverage has perpetrated an informational bias by significantly diverging from the consensus view in climate science that humans contribute to climate change. Troubles in translating this consensus in climate science have led to the appearance of amplified uncertainty and debate, also then permeating public and policy discourse.").
261. See, e.g., Engel, supra note 9, at 1584-92;
262. Pawa, supra note 108, at 136-41.
263. See, e.g., Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980);
264. Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989).
265. Santiago v. Sherwin Williams Co., 3 F.3d 546 (1st Cir. 1993).
266. Goldman v. Johns-Manville Sales Corp., 514 N.E2d 691 (Ohio 1987).
267. Shackil v. Lederle Labs., 561 A.2d 511 (N.J. 1989).
268. See GERTRUDE STEIN, Sacred Emily, in GEOGRAPHY AND PLAYS, at 187 (Something Else Press 1968) (1922) ("Rose is a rose is a rose is a rose.").
269. See, e.g., City of Milwaukee v. NL Indus. Inc., 691 N.W.2d 888, 893 (Wis. Ct. App. 2004);
270. Second Amended Complaint for Damages and Declaratory Judgment at ¶¶ 43-56, State ex rel. Lynch v. Lead Indus. Ass'n (Lead Indus. Ass'n II), No. 99-5226, 2005 WL 1331196, at *1 (R.I. Super. Ct. June 3, 2005).
271. See California v. Gen. Motors Corp., No. C06-05755 MJJ, 2007 WL 2726871, at *1 (N.D. Cal. Sept. 17, 2007).
272. See, e.g., Engel, supra note 9, at 1587-88.
273. See, e.g., SCHUCK, supra note 54, at 15 ("Damages are assessed only retrospectively; they are an ex post remedy that comes into play only after harm has occurred (although it is intended to deter future harm as well)."). Since Schuck's book concerns specifically governmental wrongdoing, it is unclear how broadly he intended this description of damages to be. That said, that even such a careful scholar could make such a sweeping assertion shows how ingrained is the assumption of the retrospectivity of damages.
274. See, e.g., Abuan v. Gen. Elec. Co., 3 F.3d 329 (9th Cir. 1993) (applying Guam law); Mauro v. Raymark Indus., Inc., 561 A.2d 257 (N.J. 1989).
275. See, e.g., Petriello v. Kalman, 576 A.2d 474 (Conn. 1990);
276. Dillon v. Evanston Hosp., 771 N.E.2d 357 (111. 2002);
277. Mauro, 561 A.2d at 267 (N.J. 1989) (Handlet, J., dissenting).
278. Illinois courts tend to be somewhat conservative, especially on tort causation issues. See, e.g., Smith v. Eli Lilly & Co., 560 N.E.2d 324, 337 (111. 1990) (rejecting market share liability as "too great a deviation from our existing tort principles").
279. Of the courts that have considered the issue, only Pennsylvania has rejected enhancedrisk damages outright, holding that the plaintiff has the right to sue again once a disease has actually manifested itself. See Simmons v. Pacot, Inc., 674 A.2d 232 (Pa. 1996).
280. See Petriello, 576 A.2d at 484 ("The probability percentage fot the occurrence of a particular harm, the risk of which has been created by the tortfeasor, can be applied to the damages that would be justified if that harm should be realized.");
281. Dillon, 771 N.E2d at 370 ("A plaintiff can obtain compensation fot a future injury that is not reasonably certain to occur, but the compensation would reflect the low probability of its occurrence.").
282. Courts have sometimes been less sympathetic to enhanced risk damages in toxic tort cases for a simple reason: The plaintiff can pursue an additional action if the subsequent harm actually materializes. See 2 DAN B. DOBBS, LAW OF REMEDIES § 8.1(7), at 410 (1993). But such a solution is patently inadequate in the climate change cases. The cases that refused enhanced risk damages involved a single episode of tortuous behavior. Greenhouse gas emissions, however, represent a continuing activity. Thus, damages are not here simply compensatory; they reflect an attempt to deter the behavior of producers. To wait until climate change damage occurs and only then award damages can only recall Mr. Bumble's response to coverture: "[I]f the law supposes that, then the law is an ass."
283. CHARLES DICKENS, THE ADVENTURES OF OLIVER TWIST 399 (Oxford Univ. Press 1953) (1838).
284. See, e.g., Doll v. Brown, 75 F.3d 1200, 1206 (7th Cir. 1996) (Posner, C.J.) ("This basis for an award of damages is not accepted in all jurisdictions, but it is gaining ground and it is in our view basically sound.");
285. Delaney v. Cade, 873 P.2d 175, 186-87 (Kan. 1994);
286. Falcon v. Memorial Hosp., 462 N.W.2d 44 (Mich. 1990);
287. DeHanes v. Rothman, 727 A.2d 8 (N.J. 1999) (sub silentio acceptance of principle);
288. Alberts v. Schultz, 975 P.2d 1279 (N.M. 1999);
289. McKellips v. Saint Francis Hospital, Inc., 741 P.2d467, 475-77 (Okla. 1987);
290. Herskovits v. Group Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983).
291. The seminal article is Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 YALE L.J. 1353 (1981);
292. see also Elmer J. Schaefer, Uncertainty and the Law of Damages, 19 WM. & MARY L REV. 719 (1978).
293. MARK A. FRANKLIN, ROBERT L. RABIN & MICHAEL D. GREEN, TORT LAW AND ALTERNATIVES 367 (8th ed. 2006). So far, the loss-of-a-chance formula has been restricted to medical malpractice cases.
294. See Hardy v. Sw. Bell Tel. Co., 910 P.2d 1024 (Okla. 1996);
295. RESTATEMENT OF THE LAW (THIRD) TORTS: LIABILITY FOR PHYSICAL HARM § 26 cmt. n (Proposed Final Draft No. 1, 2005). But there is no principled reason to do so; in the climate change cases, refusal to do so, and thus refusal to obtain compensation for harms, undercuts both the deterrence and compensation goals of the tort system.
296. Such a double-discounting approach has received academic support elsewhere. See, e.g., Allen Rostron, Beyond Market Share Liability: A Theory of Proportional Share Liability for Nonfungible Products, 52 UCLA L REV. 151, 215 (2004) (arguing that courts should recognize that "fungibility is not essential if liability can be allocated in a way that reasonably accounts for the differing levels of risk created by each defendant");
297. Glen O. Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 VA. L. REV. 713, 750 (1982) ("As long as liability is proportionate to the risks created by a defendant, there is no reason why the Sindell liability rule cannot be applied to cases involving multiple and different risk-creating activities.").
298. See MKT. ADVISORY COMM., supra note 61, at 5.
299. See, e.g., NORDHAUS, supra note 67.
300. The feasibility of such an option might vary depending upon the impleader rules in each state. California law, for example, allows cross-complaints by a defendant against nonparties if it "arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him." CAL. CLV. PRO. CODE § 428.10(b) (2004). California case law requires that this provision be interpreted liberally.
301. See, e.g., Thorpe v. Story, 73 P.2d 1194 (Cal. 1937);
302. Nomellini Constr. Co. v. Harris, 77 Cal. Rptr. 361 (Cal. Ct. App. 1969). So the series of occurrences provision could quite easily be applied to carbon emissions resulting in climate change. In New York, the issue is less settled
303. see N.Y. C.P.LR. 1007 cmt. 1007:3 (McKinney 1997), but the Appellate Division appears to have adopted a standard more akin to the California one.
304. See Gross v. DeMeglio, 533 N.Y.S. 2d 386, 388 (N.Y. App. Div. 1988) (holding that an impleader is allowed even though an impleaded party is not liable for all or part of the plaintiff's claim against the defendant, because an impleaded claim is "highly relevant to and interrelated with the economical resolution of the primary action").
305. Such a framework would resemble the standard proposed by Thomas Merrill, videlicet a golden rule of transboundary pollution whereby the law does not require any more of foreign polluters than it would require of domestic sources. See Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931 (1997).
306. See Paul Farhi, He Sliced and Diced His Way Into Pop Culture, WASH. POST, Sept. 2, 2006, at C1, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/09/01/ AR2006090101777.html (last visited July 15, 2007) (detailing the obituary of the writer of, inter alia, the Ginsu knife television advertisements).
307. Agence France-Presse, India's Tata Group Set to Launch World's Cheapest Car, Dec. 29, 2007, available at http://afp.google.com/ article/ALeqM5hw07-JJk3RFdcyBRu_fqNPgOHBNw.
308. Associated Press, Indian Automaker Unveils World's Least Expensive Car, FJOSTON GLOBE, Jan. 11, 2008, available at http://www.boston.com/business/technology/articles/2008/01/11/ indian_automaker_unveils_worlds_least_expensive_car.
309. The only provisions concerning "International Air Pollution" in the Act concern whether domestic pollutant sources are affecting another country-not vice versa. See 42 U.S.C. § 7415 (2000).
310. See EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991);
311. Foley Bros. Inc. v. Filardo, 336 U.S. 281, 285 (1949).
312. A complete discussion of the contours of dormant foreign affairs power and climate change litigation is outside the scope of this Article. The foregoing section, however, relies heavily on Merrill, supra note 9, at 319-28, with whose analysis I agree.
313. Zschernig v. Miller, 389 U.S. 429 (1968). I have complained about Justice Douglas' lack of legal craftsmanship elsewhere. See Jonadian Zasloff, Max Lemer's Judicious Review, BOSTON GLOBE, Aug. 9, 1994, at 70 (reviewing MAX LERNER, NINE SCORPIONS IN A BOTTLE: GREAT JUDGES AND CASES OF THE SUPREME COURT (1994)) (noting that Justice Douglas' opinions are often "incomprehensible").
314. Zschemig, 389 U.S. at 441.
315. 536 U.S. 396 (2003).
316. See Merrill, supra note 9, at 319-28, reaching a similar conclusion.
317. Milwaukee v. Illinois, 451 U.S. 304 (1981).
318. Illinois v. Milwaukee, 406 U.S. 91 (1972).
319. Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945).
320. 480 U.S. 102 (1987).
321. Id. at 115 (quoting United States v. First Nat'l City Bank, 379 U.S. 378, 404 (1965) (Harlan, J., dissenting)).
322. Austen L Parrish, Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident Alien Defendants, 41 WAKE FOREST L REV. 1, 20 (2006).
323. 465 U.S. 783 (1984).
324. Id. at 789-90.
325. See, e.g., Air Prods. and Controls, Inc. v. Safetech Int'l Inc., 503 F.3d 544, 552-53 (6th Cir. 2007) (adopting the enhancement interpretation of Colder).
326. See, e.g., Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995) ("Our review of these post-Colder decisions indicates that the mere allegation that an out-of-state defendant has tortiously interfered with contractual rights or has committed other business torts that have allegedly injuted a forum resident does not necessarily establish that the defendant possesses the constitutionally required minimum contacts.");
327. Reynolds v. Int'l Amateur Athletic Fed'n, 23 F.3d 1110, 1120 (6th Cir. 1994).
328. See, e.g., Lakin v. Prudential Sec., Inc., 348 F.3d 704 (8th Cir. 2003);
329. Mich. Nat'l Bank v. Quality Dinette, Inc., 888 F.2d 462 (6th Cir. 1989);
330. Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434 (3d Cir. 1987).
331. See Helicopteros Nacionales de Colombia, S.A. v. Hall (Helicopteros), 466 U.S. 408 (1984).
332. David Good, Good Tidings, http://www.tata.com/0_tata_worldwide/america/ articles/20051007_tidings.htm (last visited Apr. 16, 2008).
333. Id.
334. New York Stock Exchange, Tata Motors Limited, http://www.nyse.com/about/ listed/ttm.html (last visited Apr. 16, 2008).
335. See Kate Litvak, Sorbanes-Oxley and the Cross-Listing Premium, 105 MICH. L REV. 1857, 1861-62 (2007) (explaining the reasons for firms to list their shares on foreign stock exchanges).
336. See MIRA KAMDAR, PLANET INDIA: THE TURBULENT RISE OF THE LARGEST DEMOCRACY AND THE FUTURE OF OUR WORLD (2007).
337. 466 U.S. 408 (1984).
338. Id. at 411.
339. See Graham C. Lilly, Jurisdiction Over Domestic and Alien Defendants, 69 VA. L. REV. 85 (1983).
340. See Foster-Miller, Inc. v. Babcock & Wilcox Can., 46 F.3d 138, 150 (1st Cir. 1995) ("The doctrines of personal jurisdiction and forum non conveniens share certain similarities, but they embody distinct concepts and should not casually be conflated.").
341. See Piper Aircraft v. Reyno, 454 U.S. 235, 241 (1981).
342. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 127 S. Ct. 1184, 1191 (2007).
343. Piper Aircraft, 454 U.S. at 265-66. Private interest factors comprise the '"relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive.'"
344. Id. at 241 n.6 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Public interest factors include "the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflicts of law, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty."
345. Id. (internal quotation marks and citations omitted).
346. 454 US. 235.
347. See EDWARD LUCE, IN SPITE OF THE GODS: THE STRANGE RISE OF MODERN INDIA 94-95 (2006).
348. Id.
349. The private interest factors seem something of a wash because there will be sources and witnesses on both sides, and there is no need for a view of the premises.
350. 454 U.S. at 254.
351. See, e.g., FALI S. NARIMAN, INDIA'S LEGAL SYSTEM: CAN IT BE SAVED? (2006). Nariman is no disgruntled critic: He is currently the President of the Bar Association of India.
352. PRATAP BHANU MEHTA, India's Judiciary: The Promise of Uncertainty, in PUBLIC INSTITUTIONS IN INDIA: PERFORMANCE AND DESIGN 158, 193 (Pratap Bhanu Mehta & Devesh Kapur eds., 2005).
353. Id. at 160.
354. Charles Epp succinctly summarizes the difficulty that the Supreme Court in India had in enforcing its public law vision when he observes, "[t]he Indian Supreme Court clearly tried to spark a rights revolution-but little happened." CHARLES R. EPP, THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE 71 (1998).
355. Tata would no doubt argue that Indian and not federal common law should apply. Choice-of-law and jurisdictional analysis are different. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821 (1985). There seems little reason, however, to suppose that a federal court would not apply federal common law, especially when the state's interest in domestic law being applied is so great.
356. See TAO WANG & JIM WATSON, WHO OWNS CHINA'S CARBON EMISSIONS? 1 (2007), available at http://tyndall.wetapp1.uea.ac.uk/publications/ briefing_notes/bn23.pdf.
357. See Asahi Metal Indust. Co. v. Superior Court, 480 U.S. 102, 108-13 (1984) (plurality opinion) (arguing that "something more" than placing something in the "stream of commerce" is required for personal jurisdiction under the Due Process Clause). The plurality worried that jurisdiction based upon the mere placement of a product in the stream of commerce would violate the Due Process Clause, and instead emphasized that "a finding of minimum contacts must come about by on action of the defendant purposefully directed toward the forum State."
358. Id. at 112. If a plaintiff state attorney general were to bring a public nuisance action against an entity that manufactured the product for the American market or exported it there, then this would clearly meet the standard. Additional ambiguity arises because many products have a highly complex, international assembly chain.
359. See ROBYN MEREDITH, THE ELEPHANT AND THE DRAGON: THE RISE OF INDIA AND CHINA AND WHAT IT MEANS FOR ALL OF US 97-116 (2007) (describing these supply chains). The plurality opinion may simply result in the defendant being the last entity in the supply chain, with costs being passed through the chain, perhaps through indemnification agreements.
360. See Joost Pauwelyn, U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law (Nicholas Inst, for Envtl. Policy Solutions, Duke Univ., Working Paper No. 07-02, 2007), available at http://www.nicholas.duke.edu/institute/ internationaltradelaw.pdf.
361. Jeffrey Logan, Joanna Lewis & Michael B. Cummings, For China, the Shift to ClimaxeFriendly Energy Depends on International Collaboration, BOSTON REVIEW, Jan./Feb. 2007, available at http://www.pewclimate.org/press_room/discussions/jlbostonreview.cfm. Some analysts believe that the total is closer to two per week.
362. J. KATZER ET AL., THE FUTURE OF COAL: OPTIONS FOR A CARBON-CONSTRAINED WORLD, at ix (2007), available at http://web.mit.edu/coal/The_Future_of_Coal.pdf.
363. See Keith Bradsher & David Barboza, Pollution From Chinese Coal Casts a Shadow Around Globe, N.Y. TIMES, Jun. 11, 2006, at Al, available at http://www.nytimes.com/2006/06/11/business/worldbusiness/ 11chinacoal.html;
364. Peter Fairley, Part II: China's Coal Future, TECH. REV., Jan. 5, 2007, http://www.technologyreview.com/Energy/17964/page1.
365. JAMES Q. WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 299-300 (1989).
366. See, e.g., J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L REV. 1499 (2007) (arguing that the next few years will see comprehensive climate change legislation, but that the only prediction that can now be made is that the cap-and-trade system will be an important part of it).
367. ExxonMobil, for example, has led a long-running campaign designed to mislead the public about the threats of climate change. Its strategy was laid out six years ago in a confidential oil industry memo titled A Global Climate Science Communications Action Plan: "Victory will be achieved when uncertainties in climate science become part of the conventional wisdom."
368. See Environmental Defense, Too Slick: Stop Exxon Mobile's Global Warming Misinformation Campaign, http://action.environmentaldefense.org/ EDF_Action_Network/alert-description.html?alert_id=2444798 (last visited Mar. 24, 2008);
369. see also Terence Chea, Jerry Brown Makes Climate Change Crusade, SFGATE, Dec. 15, 2007, http://www.sfgate.com/cgi-bin/ article.cgi?f=/n/a/2007/12/13/state/n122910S76.DTL (quoting the Vice President of the Pacific Legal Foundation as saying that climate change lawsuits are better handled by Washington lawmakers).