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California Political Review: Combatting Climate Change Beyond the Courts

Climate Change is the single most pressing problem addressing our planet. Increasing global temperatures have the potential to flood our cities, cause fires to burn our homes and forests, and lay waste to environments that need to thrive to support human, animal, and plant life. As a mother, I want a safe and habitable planet for my children, their children, and future generations.

I recently participated in a panel put on by the Progressive Policy Institute, a Washington, DC based think tank focused on promoting “radially pragmatic” ideas. The panel explored whether litigation was an effective tool to combat climate change.

My take is that litigation is an inefficient and inelegant way to combat climate change. Instead, we should urge our law and policy makers to promote innovation at the state, local, and federal level to reduce greenhouse gas emissions to address climate change. We should use the power of government and the press to share ideas that work – based on shared responsibility – rather than target a few manufacturers to pay for a problem that we have all helped cause.

Most climate change lawsuits rely on a public nuisance theory of law, rather than traditional tort liability. Public nuisance law can best be understood as the opposite of a public good – it is a public bad. Unlike traditional tort lawsuits, which are based on individual harms – you hit me with your car so I will sue you to pay my medical bills – public nuisance theory relies on a bad harm to all of us. Historically, it was used to punish someone who polluted the town well, or who blocked access to the bridge. There is no countervailing good to the public nuisance activity.

The full article can be read here.