Public Nuisance and the “Political Question” Doctrine – Two Sides of the Same Coin?

The ancient common tort of public nuisance is all the rage these days. Its resurgence is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Traditionally limited to local concerns, the tort now aspires to planetary dimensions. Its expanding scope has now attracted the attention of the United States Supreme Court in American Electric Power v. Connecticut, which will be argued this Spring. If its advocates succeed, the “monster that will devour in one gulp the entire law of torts” may be afforded a prime seat at the banquet. This article, whose author is one of the advocates in American Electric Power v. Connecticut, demonstrates why the Supreme Court may hesitate before swallowing the plaintiffs’ main dish.