Public Nuisance and Climate Change: The Common Law's Solutions to the Plaintiff, Defendant and Causation Problems

Abstract

Litigation relating to climate change is on the rise, yet outside the United States few efforts have been made to bring private actions in public nuisance seeking injunctive relief to require a defendant to reduce its emissions. This article examines three key doctrinal challenges facing a plaintiff in a public nuisance action connected to climate change: qualifying as a plaintiff; delineating a defendant class; and dealing with multiple sources of emissions. It argues that the tort of public nuisance has well‐developed mechanisms able to solve these challenges in the context of other collective action problems, which can also be deployed in the context of climate change. These challenges facing a plaintiff in a climate changed‐based public nuisance case can be overcome without creating new law, enhancing the prospects of a successful claim being brought in a common law jurisdiction.