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Climate Change and the Courts

In Climate Change and the Courts, Professors Jason S. Johnston and Heidi M. Hurd debate whether there should be a public nuisance tort for greenhouse gas (GHG) emissions in light of the Court’s recent decision in American Electric Power (AEP) v. Connecticut. Professor Johnston argues that the Court has itself in a bind: relying on EPA v. Massachusetts, the Court found that the EPA’s regulation of GHGs displaced common law tort actions. However, on Johnston’s view, EPA v. Massachusetts should be overruled by statute, in which case a later challenge to AEP v. Connecticut might succeed. Johnston’s concern is that neither the courts nor the EPA are in a proper position to regulate a harm that he considers distant and speculative, ultimately concluding that if there should be any regulation of GHGs at all, it should come from Congress. Such legislation, he argues, will be nuanced based on the needs of particular states. In response, Professor Hurd suggests that Johnston incorrectly frames the question, which should be whether the petitioners “have violated the common law entitlement to be free from unreasonable injury,” a question which can only be decided by courts. Hurd argues that the purpose of tort law is “corrective justice,” and the focus should not be whether the injury caused by the GHG-emitting companies was de minimis or whether reducing emissions without an agreement from China will ultimately curb climate change, but whether the companies have caused harm to the respondents. If so, Hurd continues, the petitioners should be required to internalize the costs of these injuries, exactly what tort law is prepared to do.