Despite possessing statutory authority to regulate at least some contributing causes of climate change, environmental regulators in the United States have recently found themselves tied up in political gridlock. In response, advocates are turning from the regulatory track to a common law liability track, bringing public nuisance suits against fossil fuel producers and electric utilities. However, most of these public nuisance suits have met a common fate: they have been held to be displaced by the comprehensive regulatory framework for controlling greenhouse gas emissions contained in the Clean Air Act. As long as there is even the possibility of regulatory action from EPA, suits alleging violations of the federal common law of public nuisance will be dismissed. The result is that neither road to serious climate policy is passable in the current environment.
This Article points to a gap-filling approach that has yet to be pursued by climate change advocates. Even if EPA will not or cannot regulate and nuisance suits against electric power and transportation sector defendants are barred, one set of contributors to climate change is still susceptible to suit. The animal agricultural industry is responsible for a surprising amount of greenhouse gas emissions—around 18 percent of global emissions and by some estimates even more than all transportation sources combined. Unlike with emissions of greenhouse gases from tailpipes or smokestacks, there is no plausible argument that Congress has ever developed a statutory framework that speaks directly to the problem of animal agriculture’s contributions to climate change. While this means regulators lack authority to address the problem, it also means that courts should be able to maneuver around the displacement barriers to hear a properly pled federal common law of nuisance action against offending meat producers. I argue that such a suit would be a worthwhile enterprise not only because it stands a reasonable chance of surmounting the displacement barrier to climatic nuisance suits, but also because it would put pressure on policymakers and industry to curb emissions and would bring public scrutiny to the inefficiencies and externalities of animal agriculture.
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