Legality of Environmental Justice

By ALEX RAGLAND


          Environmental justice has heavily relied on the argument of federal common law of public nuisance for its argument. A public nuisance is “an act that causes incontinent or damage to public health or that obstructs public rights.”[i] The first link between pollution and public nuisance was created in the Supreme Court case Georgia v. Tennessee Copper (1907). The case, which was about air pollution due to copper mining, determined that states have the ability to sue for environmental damages.[ii] Furthermore, the case described the nature of the nuisance as:

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source. If any such demand is to be enforced this must be, notwithstanding the hesitation that we might feel if the suit were between private parties, and the doubt whether for the injuries which they might be suffering to their property they should not be left to an action at law.[iii]

          This case laid the groundwork for key environmental cases years later. However, after 1907, the case, and the newly-defined public nuisance, were largely ignored. Seventy years later, the landmark decision in Illinois v. Milwaukee (1972) would cite Georgia v. Tennessee Copper as the Court defined federal common law of public nuisance.[iv]

          The federal common law of public nuisance was recognized in the decision Illinois v. Milwaukee (1972).[v] Before Illinois v. Milwaukee was decided at the Supreme Court, Congress had passed numerous legislations regarding the environment, and more specifically water pollution, such as the Federal Water Pollution Control Act and the National Environmental Policy Act of 1969. The Court decided that the previously listed “existing legislation did not offer the plaintiff the needed remedy” and “appealed to federal common law in fashioning a remedy for Illinois”.[vi] The decision of Illinois v. Milwaukee was a success for environmental law in that it allowed for the possibility for further lawsuits to be filed. After the decision in 1972, a “wave of cases” would emerge as conservation groups attempted to “apply this newly reemergent legal doctrine to other polluters”.[vii] It seemed as if environmental plaintiffs now had an iron-clad argument. However, soon the cracks in relying on the doctrine began to show.

          The doctrine that evolved from the case was “cloaked in general and vague terms.”[viii] The vague terms which defined the federal common law of public nuisance caused confusion in the lower courts.[ix] Now, lower courts had the problem of determining how to apply the doctrine. In response, some courts have “resolved this uncertainty by limiting application of the federal nuisance cause of action to factual settings analogous to the ones that existed in Illinois v. Milwaukee.”[x] This encapsulates multiple specific facts of the case and ensures that the number of environmental cases that can use the federal common law of public nuisance is severely limited. Other courts take the opposite approach and interpret the Court’s opinion as a “broad policy doctrine designed to protect the nation’s waterways and to abate water pollution.”[xi] This split definition of the Court’s ruling was particularly harmful to potential defendants. A “primary complaint” of defendants is that, since the application of public nuisance doctrine with regards to environmental cases is so vague, it is difficult for “defendants to reliably predict what sorts of activities will give rise to liability.”[xii] Regardless of the interpretation, Illinois v Milwaukee’s definition of federal common law forced district courts to “decide on the merits appellants’ right to federal common law relief” on a case-by-case basis.[xiii] While Illinois v. Milwaukee seemed like an easy answer to environmental cases, in reality it caused more trouble.

          Nine years after the original Court decision, the city of Milwaukee appealed a federal district court decision and the Supreme Court held the case Illinois v. Milwaukee (1981), commonly known as Milwaukee II.[xiv] However, in Milwaukee II, eight years after the original case, the Court switched their stance on federal common law. It held that “subsequent federal legislation regarding water pollution—specifically, what had come to be known as the Clean Water Act—was sufficiently comprehensive to displace any appeal to federal common law.”[xv] It was this decision that dampened the possibility of claiming federal common law of public nuisance. However, the Court did affirm the “a remedy for public nuisance is sometimes available under federal common law” [xvi](4 876). While Milwaukee II did severely limit the wide range of the doctrine established by its predecessor, it was not the end of claiming federal common law of public nuisance for environmental cases.[xvii]

          The true limiting case of federal common law of public nuisance was the Supreme Court Case Connecticut v. American Electric Power (2011). Connecticut v. American Electric Power reversed the Second Circuit’s earlier decision and clearly concluded that the Clear Air Act displaces federal common law of public nuisance.[xviii] Justice Ginsburg simply stated “We see no room for a parallel track,” [xix] the parallel track referring to the limiting on carbon dioxide emissions with both the Clean Air Act and invoking by federal common law. In Milwaukee II and Connecticut v. American Electric Power, the Supreme Court severely limited the ability for environmental plaintiffs to invoke federal common law of public nuisance.

          While it seems that federal common law of public nuisance with regard to climate change cases may no longer to viable options for environmental plaintiffs’ arguments, it did open the possibility for another argument to take its place. In the final lines of the Court’s opinion of Connecticut v. American Electric Power, Justice Ginsberg stated, “None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.”[xx] Therefore, the Court’s decisions that federal legislation displaces federal common law of public nuisance does not determine whether or not state common law could be argued successfully. While federal common law may not serve the environmental justice movement any further, there is an opportunity for state common law to pick up where it left off.


[i] Roger Meiners and Bruce Yandle, “The Common Law: How it Protects the Environment,” PERC Policy Series, (1 May 1998) https://www.perc.org/1998/05/01/the-common-law-how-it-protects-the-environment/

[ii] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[iii] Illinois v. City of Milwaukee, 406 U.S. 7 (1972)

[iv] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[v] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[vi] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[vii] Paul J. Wahlbeck. The Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32 Law & Soc’y Rev. 613 (1998). https://www-jstor-org.proxy.library.georgetown.edu/stable/pdf/827758.pdf?ab_segments=0%252Fbasic_SYC-4929%252Fcontrol&refreqid=excelsior%3Abb92c63075de2235716be0f271bdd30e

[viii] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[ix] Federal Common Law of Nuisance in Intrastate Water Pollution Disputes, Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), 1977 Wash. U. L. Q. 164 (1977). https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2580&context=law_lawreview

[x] Craig E.R. Jakubowics, Comment: Federal Common Law of Public Nuisance: An Expanding Approach to Water Pollution Control, 10 U. Balt. L. Rev. 134 (1980). https://scholarworks.law.ubalt.edu/cgi/viewcontent.cgi?article=1256&context=ublr

[xi] Id.

[xii] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[xiii] Federal Common Law of Nuisance in Intrastate Water Pollution Disputes, Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), 1977 Wash. U. L. Q. 164 (1977). https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2580&context=law_lawreview

[xiv] Jeffrey N. Stedman. Climate Change and Public Nuisance Law: AEP v. Connecticut and Its Implications for State Common Law Actions, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 865 (2012). https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1554&context=wmelpr

[xv] Id.

[xvi] Id.

[xvii] Id.

[xviii] Connecticut v. American Electric Power, 564 U.S. 10 (2011)

[xix] Ibid., 11.

[xx] Ibid., 15.

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