federal common law of nuisance

The Pro-Environmental Lochner Court

How a conservative Court defended environmental protection a century ago.

Like today’s Court, the Supreme Court a century ago was dominated by conservatives. The Lochner era, from around 1900 to 1935, was named after the most notorious case of that period. The Lochner case, which struck down a maximum hours law for workers, epitomized the conservative Supreme Court of that era.  Yet that conservative Court …


Ninth Circuit Rules Against Indian Tribe’s Climate Change Suit

Not much of a surprise here; a Ninth Circuit panel “has ruled against the northwest Alaska village of Kivalina, which sued energy companies over claims that greenhouse emissions contributed to global warming that is threatening the community’s existence.”  The village brought a common-law public nuisance claim against the oil companies, but the panel held that …


The Supreme Court on Climate Torts — A Second Look

Let’s begin with the bad news.  The plaintiffs lost, eliminating one possible tool in combating climate change.  That doesn’t seem like a big loss to me, because I’ve always thought that the defendants’ best argument was that the federal common law is displaced by the Clean Air Act.  It’s an easy argument to make based …