Public Nuisance Claims in Climate Change Litigation: How Useful Are They?

Litigation is playing an increasing and increasingly varied role in efforts to mitigate and adapt to the effects of anthropogenic climate change. Climate change case law is found in every juridical level from local courts through to international tribunals. The legal theories being deployed are equally wide-ranging and the pool of plaintiffs and defendants is becoming crowded and diverse. Much of this case law intersects with property, particularly in Australia in terms of environmental assessment and permission for land development as it relates to climate change adaptation, and interferences related to land use or enjoyment from mitigation projects such as wind farms (noise impact, landscape values, etc). These cases are generally resolved at the level of civil and administrative tribunals. Two recently decided cases at the federal district court level in the United States with implications for property, City of Oakland v BP and City of New York v BP plc, feature major coastal cities bringing nuisance claims against top players in the fossil fuel production industry for damages related to the effects of global warming to the property and persons of their municipalities. This article examines the functioning of the US interpretation of public nuisance vis-à-vis climate change litigation, investigating how the claims are presented by the litigants and received by the courts and their effectiveness as a strategy for dealing with issues related to climate change.