Common Law good for climate change, it proves to be a good safety net for when climate acts will not be passed.

Nevitt and Percival also argue that nuisance law claims would be particularly successful if brought by state governments against EPA. These suits could more likely reach the legal merits, they write, because the Supreme Court has historically been more attentive to the needs and rights of “quasi-sovereign” entities like states. The Court has granted this solicitude because, as Justice Oliver Wendell Homes wrote, a state should have the “last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

Arguing for the viability of nuisance law claims, though, is not meant to endorse them as a replacement to administrative rulemaking, Nevitt and Percival say. Instead, they argue that the common law will remain an “essential backstop when existing regulatory authorities fail to address significant environmental problems.”

Although litigation is inherently retrospective and slow, Nevitt and Percival contend that the threat of common law suits can still encourage the legislative and executive branches to use proactively the authority granted them by the seminal environmental statutes.