Part I of this article explores the role that the common law played in addressing environmental problems prior to the development of a robust public law regime in the 1970s and the changing role of common law as the new regime was implemented. Part II of the article examines the reasons why there has been a renaissance in common law actions and why the trend could continue. Part III of the article discusses the recent federal appellate court decisions that could accelerate the common law renaissance, as well as some other recent federal court decisions that could slow the renaissance. All of these decisions involved harm caused by global climate change, Hurricane Katrina, or both. Part IV of the article identifies environmental problems not adequately addressed under public law that might be the subject of more aggressive common law enforcement if the renaissance continues and discusses the advantages of addressing those problems through common law actions. Finally, Part V explores the continuing limitations of common law that have not been remedied by the recent decisions.
Stephen M. Johnson, From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures?, 27 Ga. State L. Rev. 565 (2010).