The inclusion of the aff prevents common law---the aff’s statutory law displaces the counterplan.

Operating alongside statutory and regulatory environmental protections, the federal common law of public nuisance “protects the public against unreasonable and substantial interference with a public right.”52 What rights are included is not entirely clear, but the doctrine roughly covers “rights in health, safety, and comfort that are not necessarily tied to land or a particular resource.”53 What differentiates federal public nuisance from ordinary public nuisance, which has a long lineage in state common law, is federal jurisdiction, which is established by Article III, Section 2’s grant of original jurisdiction to the Supreme Court to resolve disputes between states or between states and citizens of another state.54 States have a quasi-sovereign interest in reducing environmental harms that originate out-of-state but affect the state’s citizenry.55

The Supreme Court has developed the federal common law of public nuisance in a series of environmental cases spanning over a century.56 Indeed, as Robert Percival has observed, “[p]rior to the enactment of comprehensive federal regulatory statutes, the common law of nuisance was the first line of legal defense for the environment. In the early decades of the twentieth century, the Supreme Court itself heard many prominent disputes between states over transboundary air and water pollution.”57 For instance, in 1906 the Court recognized the possibility of using public nuisance to remediate the contamination of public water that occurred when the City of Chicago, aiming to protect Lake Michigan, reversed the flow of the Chicago River and directed its sewage down the Illinois River and into the Mississippi River.58 Just a year later, the Court recognized the possibility of states suing private defendants in a case involving two Tennessee Copper Company smelters that spewed sulfur dioxide across state lines and into Georgia.59 The Court continued to hear similar cases for decades,60 sometimes appointing special masters to oversee the technical and scientific questions raised by the litigation.61 Ordinarily, the relief in these cases took the form of an injunction to abate the nuisance, although in recent decades it has become clear that money damages of some kind are suitable remedies as well.

The scope of the federal common law of public nuisance action is elastic. The essential elements are a public right—usually enjoyment of a common resource, such as water or air—and an unreasonable interference with that right caused by a defendant, either public or private.62 Beyond this, the Court has described these suits as requiring a court to “appraise the equities” on either side of an environmental dispute.63 As a result of this elasticity, climate change litigants began to think about the possibility of using the public nuisance concept to address climate-related harms. The right to a habitable planet might be thought of as the quintessential public right.64

The main limit on the scope of the public nuisance doctrine is the concept of “displacement,” which holds that the federal common law is no longer available where there is already statutory law that fills the role.65 The displacement question is somewhat similar to preemption (which applies to state law),66 although, critically, it is closer to conflict preemption than field preemption in that it does not hinge on evidence of congressional purpose or intent.67 Instead, the focus is on whether the remedy sought in a public nuisance suit would be duplicated by, and therefore interfere with, applicable federal statutory programs68—indeed, the displacement cases expressly acknowledge that federal common law will play a supplemental role to environmental statutory regimes, filling in interstices and gaps left by Congress.69 For instance, in a 2008 case involving claims arising from the Exxon Valdez oil spill, the Court focused the displacement inquiry on whether the claims “threaten . . . interference with federal regulatory goals,” finding that the common law suit in that case did not threaten the implementation of the Clean Water Act and filled a gap left by the statute.70 In climate change nuisance litigation, the displacement inquiry has become the central issue and the biggest hurdle.