Over the past few years, there has been a minor renaissance in the use of common law actions, especially public and private nuisance, to address environmental problems not being adequately addressed by public law, such as climate change and natural disasters like Hurricane Katrina. Ever since the explosion of public law in response to environmental problems in the 1970s, the common law has provided remedies for personal injury and property damage that are not available under public law, and avenues of relief for problems that were ignored by public law. The common law and public law should not, however, be viewed as alternatives for addressing environmental problems, but as complements. There is an Escheresque quality to the relationship between public law and common law, in that public law continues to evolve in light of developments in the common law, while the common law is influenced, in turn, by developments in public law. Vibrant common law remedies are an essential complement to public law for effective programs to minimize harms to the environment and human health.
Stephen M. Johnson,
From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures?
Ga. St. U. L. Rev.
Available at: https://readingroom.law.gsu.edu/gsulr/vol27/iss3/3